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• Bar: Seniors bypassed again

The Bar Council is pleased to see that a number of senior Judges of the High Court have been elevated to the Court of Appeal. In some cases their elevation ought to have occurred sooner. The Bar Council congratulates all the Judges elevated yesterday.

However we are saddened to note that, once again, a number of respected and senior High Court Judges have been by-passed in the promotion exercise, again for no discernible reason. This is neither right in principle, nor helpful in terms of morale.

The Bar Council has consistently maintained that, in the absence of a more objective and transparent mechanism such as a Judicial Appointment Commission, seniority (which equates to experience as a judge) should be the first criterion in any promotion exercise. There may be occasions when other factors justify a departure from seniority but these must have basis, and in the absence of a fair and improved system to determine these other factors, such a departure from seniority ought to be rare. The Chief Justice has made mention of there being no promotion for Judges who have a backlog in writing grounds of judgment. We do not see this being applied uniformly; nor do we believe that this factor may be properly considered in isolation.

Unfortunately, in the last few years ignoring seniority has become the norm, leaving many Judges uncertain about their future, and the Bar as well as the public puzzled as to the process. Such uncertainty does little to strengthen one of the most important institutions in the country. It does little for the morale of judicial officers who have made a commitment to a career on the Bench. It also does little to dispel unnecessary and unhealthy speculation about promotions, which are again unfair to those promoted.

The Chief Justice has been reported to have mentioned a “committee of senior Judges of the Federal Court and Court of Appeal” who decide on promotions. It is interesting to note that seniority is given weight here. In the interest of transparency, the Bar Council calls upon the Chief Justice to publicly disclose the names of the senior Judges on this committee, the criteria for selection onto the committee, as well as the list of criteria employed in determining promotions.

It is important that we remind ourselves of the special position that Judges hold in society. They are His Majesty The Yang DiPertuan Agung’s Judges, trusted to do justice in accordance with their Oath of Office. Their duties are onerous. They are duty bound to uphold the Constitution without fear or favour and are accountable to the people of Malaysia. In these circumstances, it is unacceptable that the system of appointment and promotion of Judges remains shrouded in secrecy. Judges cannot be made to feel that they “owe” their promotion or confirmation to any one or more persons, but rather, only to their integrity, independence, ability and performance.

One other matter that has remained unresolved for more than 6 months is that of the position of Chief Judge of Malaya. A position such as this ought not to have remained vacant for any length of time. In other jurisdictions, they are not left vacant even for a day. In the interim, the Courts of Judicature Act 1964 appears to envisage that the vacant post of Chief Judge of Malaya ought to be held by a Federal Court Judge (rather than any of the office holders) designated for this purpose by the Chief Justice until an appointment is made.

The issues that the Bar has raised for a long time in relation to the Judiciary should not continue to be left unaddressed. The positions that the Bar takes accord with regional and international norms. Our former Chief Justice was in fact a signatory to one such consensus document in 1995 namely The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region which was signed by the Chief Justices in the region. It was agreed by the signatories that this document (which, apart from other guidelines, stipulates a transparent appointments and promotions process) represented the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the Judiciary. It is pointless for a head of the Judiciary to have signed such a document if scant regard is subsequently had to any of its contents.

Ambiga Sreenevasan
President
Malaysian Bar

19 July 2007

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