RESPONSE TO MEDIA ENQUIRIES: Criteria for judicial promotion
Contributed by Yeo Yang Poh
Thursday, 30 March 2006 07:17am
The Bar Council’s views have been sought regarding the criteria and system for judicial promotion.
Background: why is judicial promotion traditionally based on seniority?
In a good justice system, all judges (and not just some judges), with the fewest exceptions, must already possess all the right attributes that a judge should have. These attributes are the same qualities that should make a judge suitable for promotion in time to come. If an existing judge does not already possess these qualities, then his suitability as a judge may itself be called in question. That being the case, all judges (with the rarest exceptions) should meet the criteria for promotion when their turns come, with an additional factor being the experience that generally comes with seniority. Therefore, traditionally, seniority becomes a good and orderly method to be adopted for the purposes of judicial promotion.
Should seniority remain the sole factor?
It is not suggested that seniority should forever remain the sole factor in each and every case. There may be occasions when other factors justify a departure. But, in the absence of a comprehensively revised system, such departure must remain a rare exception rather than the rule.
When junior judges are frequently promoted over senior judges, the concern raised is not related to questioning the abilities of the junior judges. They may well be, and often are, fit for promotion on their own merit. However, the legitimate concern is the natural implication that so many senior judges are somehow considered “less suitable” for promotion. The impression that results is unfair on the senior judges who are by-passed. The perception is also most unhelpful for the judiciary as a whole, because if there are so many such “less suitable” judges in the judiciary, the image of the entire judiciary is surely affected, no matter what the actual situation may in fact be.
Alternative to the traditional system
If it is felt that seniority need not play the dominant role in judicial promotion, then any other system that is put in its place must be one that is comprehensive and well thought-out. It must be consultative, transparent and accountable; so that the public will be able to understand and appreciate the process. Other criteria (apart from seniority) that are considered relevant or important must be carefully laid out and explained, so that the process is not shrouded in secrecy, and so that no adverse inference could be drawn concerning the process of evaluation itself.
A Commission for Judicial Appointments and Promotions can be such a system. The Malaysian Bar has advocated the same for some time. Until and unless this alternative and better system is set up (and in our view there can be no plausible argument against a system that ensures transparency and accountability), the traditional method should only be departed from in the rarest of occasions.
OF CONCEPTS, LINKAGES AND OTHER FACTORS ... written by Stephen Tan Ban Cheng,
Thursday, March 30 2006 09:10 am
The promotion of Judges is far too closely linked to the Concept of Judicial Independence than has hitherto been admittted.
It is also linked to the tenure of service that underpins that concept.
Seniority and not expediency should, with respect, continue to be the main, though not the only, yardstick for promotion.
Promotions based on such a cardinal principle will promote the concept of hierarchy in the service and prevent, nay preclude the perception of the manipulation of the judiciary as an independent institution of government as implied by the Concept of the Separation of Powers.
It will also preserve the harmony as well as logic within the pecking order that any institution should prize.
The last time I returned to my university overseas, a public law professor asked me whether the concepts of the Separation of Powers and Judicial Independence were beyond the understanding of citizens of former colonies.
My answer was that all self-respecting citizens of newly independent nations or former colonies will take strong umbrage to the question as formulated since it was mounted on stilts of patronage that we do not deserve, let alone need.
Indeed, at the following lecture to which I was invited, the same rhetorical question was asked, with the rider that it was better if Western scholars refrain from judging such adverse developments through such conceptual lenses as, he added, there may be factors that Western academics may not be alive to.
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The Bar Council’s views have been sought regarding the criteria and system for judicial promotion.
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Circular No 110/2012: Seminar on Introduction to ICC Arbitration: An Insight into the 2012 ICC Rules
The promotion of Judges is far too closely linked to the Concept of Judicial Independence than has hitherto been admittted.
It is also linked to the tenure of service that underpins that concept.
Seniority and not expediency should, with respect, continue to be the main, though not the only, yardstick for promotion.
Promotions based on such a cardinal principle will promote the concept of hierarchy in the service and prevent, nay preclude the perception of the manipulation of the judiciary as an independent institution of government as implied by the Concept of the Separation of Powers.
It will also preserve the harmony as well as logic within the pecking order that any institution should prize.
The last time I returned to my university overseas, a public law professor asked me whether the concepts of the Separation of Powers and Judicial Independence were beyond the understanding of citizens of former colonies.
My answer was that all self-respecting citizens of newly independent nations or former colonies will take strong umbrage to the question as formulated since it was mounted on stilts of patronage that we do not deserve, let alone need.
Indeed, at the following lecture to which I was invited, the same rhetorical question was asked, with the rider that it was better if Western scholars refrain from judging such adverse developments through such conceptual lenses as, he added, there may be factors that Western academics may not be alive to.