KUALA LUMPUR, Tues: De facto Law Minister, Datuk Seri
Mohd Nazri Aziz said today he could be convinced about the setting up of an
independent judicial commission on the promotion and appointment of judges, but
only he wanted to do it in "the proper way". (Please click here to view the picture gallery)
"The proper way", Nazri said would mean getting the agreement of the judiciary before any amendment to the Constitution could be tabled in Parliament because to do that would be tantamount to the executive interfering with the independence of the judiciary.
Nazri added that the Bar need to engage the judiciary in this matter and that it was not possible for the Chief Justice to work with the Bar Council if the latter would always make negative and sarcastic remarks about the judiciary.
He explained that the current excellent relationship between the Council and the executive is because of engagement between the two parties.
Nazri said this in an uninhibited debate entitled There is a need, in Malaysia, to establish an independent Judicial Commission in relation to the promotion and appointment of judges with Member of Parliament for Kota Bharu, lawyer Datuk Zaid Ibrahim at the Bar Council Auditorium. The debate, attended by about 220 people, mainly members of the legal fraternity, was moderated by former Court of Appeal judge, Datuk VC George.
Malaysian Bar thanks Nazri
When the debate commenced at 5.30pm, President of the Malaysian Bar, Ambiga Sreenevasan took the opportunity to thank Nazri for making the the amendment to section 46A of the Legal Profession Act, 1976 happen.
"Many of you may not know that he (Nazri) took a personal interest in ensuring that the discriminatory section 46A provision was removed and the prohibitive quorum be reduced", said Ambiga.
Ambiga added that the Bar Council has always advocated the setting up of the judicial commission, and that following the debate, the Bar Council would be forwarding a memorandum to the Chief Justice and Nazri in this regard.
Ambiga told everyone present that the reason why they were there was because "the Judiciary is an institution of the highest value in every society" as declared in the 1997 Beijing Statement of Principles of Independence of the Judiciary in the LAWASIA Region which was endorsed by former Chief Justice, Tun Eusoff Chin.
Ambiga also thanked Ranjit Singh and Raslan for helping to arrange for the debate.
Zaid speaks for the proposition
The debate then started with the debaters first giving a speech, followed by Zaid replying. Nazri would then respond, and after that, the floor would be allowed to ask questions or make comments, ending with Nazri wrapping it up by replying to them.
Zaid who spoke for the proposition started the ball rolling by saying this motion is not a new subject, and that he had heard it 6 years ago and could be longer with not much success, and that we should continue with it.
He said when he was younger, his favourite band was Dire Straits, and dire straits means a hopeless situation and that is how he would describe the state of our judiciary for the last 20 years.
He said this is because the judiciary which is in dire straits is seen as an extension of the government department. The recruitment of judges, he said, in the last few years is like a government department. More than 80% of the judges are Malays, and it is just like a Malay department, adding that he has no problem with that if selection process is transparent and the criteria for selection are known.
"One then begins to ask if this is another government department, another agenda, a Malay agenda. Is it an agenda for justice?
"We know some good judges who are still languishing at High Court level for years. Some have been promoted up and up.
"Of course, the Chief Justice said because he has consulted a lot of people, he does not need to explain the basis for his decision. But that is what integrity and transparency are all about – to explain and justify.
"But we do not have that in the judiciary. There is also talk about corruption in judiciary – not among lawyers but also by inside people," said Zaid.
He said Syed Ahmad Idid put it openly. Idid who made serious allegations also named names some 10 years ago. Even the former Attorney General, Tan Sri Abu Talib said in one of his interviews that there was no investigation.
He charged that now we have questionable decisions made even in corporate cases like the Ayer Molek case and the conversion cases which have also caused concern among lawyers and the public.
Being mindful of what the Chief Justice said recently that slanderers are worse than murderers, he asked how could that be possible when we lawyers have no ulterior motive, and we say it because we want to see what is good for the people, the government and the judiciary.
"We have no ulterior motive. I don't think the Bar has got ulterior motive. What do they get? What can some of them want to be judges – judges are so poorly paid!
"So we do not have the ambition. We are concerned because the best people to know about the judges are the lawyers. The Barisan Nasional government must believe in what we say, unless proven otherwise", Zaid said.
Zaid said Nazri could make his mark by persuading the government to have this commission – to select the best among us. The best, Zaid said, are smart fellows, qualified lawyers, good scholars and those who have integrity and courage.
He explained we could do that if we have an independent commission. What is so difficult about the commission? How will it take away anything except to make it more transparent and accountable?
"If South Africa, a newer democracy can do it, how come we cannot do it?" he asked.
It is beyond one man to pick the judges. We need a structured organisation. We need people to vet through the applications as even with qualifications we have messed it up, Zaid said, referring to the appointments of Datuk Dr Visu Sinnadurai and Dr Badariah Sahamid.
"If we cannot get the minimum qualifications right, how do we expect to get it right on character?" he asked.
Good judges are good for the government. Good judges are good for the country. He said one may say this is a view of the minority.
But citing examples showing otherwise, Zaid said after the Tun Salleh Abas crisis, Tun Suffian lamented that it would take a generation for the judiciary to recover. In 2001, Tun Dzaiddin said public confidence in judiciary was at its lowest point.
Nothing has happened since 2001. He also quoted what Datuk Shaikh Daud had said that it used to be that tinting of judges' cars is for security reason, but now it is to hide their embarrassment.
He also referred to the recent statement by the Suhakam Chairman, Tan Sri Abu Talib who said the courts have failed to interpret the constitution.
The most damning evidence of the deteriorating state of judiciary, he said, actually came from Nazri himself.
Zaid elaborated that on April 11, Nazri was reported to have said that it is in his opinion that the government requires the setting up a commission to study the question of conversion so that these conversion cases can be settled in the extra–legal manner especially when children are involved.
Replying to Karpal Singh on the Lina Joy case, Nazri said the decision is difficult to make as it is very sensitive and we have to consider the consequences. If it is made in the right decree, the acceptance may be difficult. Zaid also quoted Nazri as saying a judge of certain faith will be labelled biased if he makes a decision favouring that faith.
"What does it say? That the government itself is not sure if our courts were to decide according to law, which they are supposed to do, there may not be acceptance? There may be serious consequences?" Zaid asked.
He said he was not trying to belittle the remark, but it just goes to show that Nazri himself is concerned about the acceptance by the public of the court's decision on sensitive cases.
But Zaid said one cannot run away from making decisions by constitutional means when already we have already taken away so many things from the courts. If there is a conflict between political parties or among themselves, under the Societies Act, you can't go to court now. That has been taken away. Zaid also said judicial review has been taken away and you have to decide what Federal law prescribes, adding that Article 121 has been amended to remove judicial powers from the hands of the judges.
"If we take these sensitive cases away from the courts too, what is there left for the judges to do?" he asked.
We have to face the hard facts. We are not the only country or society which have difficult cases or issues to deal with. But in all those countries where there is democracy and stability, Zaid said, the courts have that role to play and people accept the difficult decisions made the courts, citing the controversial case of excavating the Babri mosque in India where the decision of courts saved the day for India. In America, Zaid said the Supreme Court did not shield President Nixon when Justice Warren Burger ruled that executive privilege does not protect or hide the president's wrongdoing. Similarly, the US Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) on the constitutionality of segregation laws, saying we have to be equal as we cannot be separately equal.
Judges are therefore a different breed of people. If the public have confidence in them, they can bring stability to the country. In this country, Zaid said, there is an extremely lack of confidence in our judiciary. He alleges that the government has no confidence too and that is why they are keeping a closed eye.
Zaid went on to stress that the arguments for commission are so compelling. He said when he went to the elections in 2004, his constituency believed him when he said this government would fight corruption and go for accountability and transparency.
He said, if this government can show this commitment by just establishing a way we select and promote judges and restore the people's confidence in the judiciary, the government will go a long way in fulfilling a part of our promise to the people.
Nazri speaks against the proposition
With that, it was Nazri's turn to speak.
He started off by thanking the Bar Council for inviting him to the debate. He said he is always prepared to come and debate on any matter because the government has confidence in the system we have today. He added that if he is not confident with the system we have today, he would not be there.
He said he had actually turned up to listen to Zaid, and what he (Nazri) was going to speak is nothing new – it is a system which has been practised for the last 50 years.
Dealing with the conversion cases first, Nazri said it is not about people not having confidence in the judges. It is all about Article 121. He said in this country, whenever one of the parties happens to be a Muslim, the judges have no discretion except to decide that the case has to go to the Syariah Court.
"The problem is with Article 121, and not because people have no faith in the judges", stressed Nazri.
"Why I said the Commission (proposed special commission for religious–sensitive matters) has to be set up to look into this is because matters like this are personal, emotional and controversial and whatever decision should not be made public", said Nazri.
In the Subashini case, he was of the opinion that the children should be given back to the mother.
"When they got married, they were Hindus and that there was a constructive agreement that any children born in the marriage would be brought up as Hindus. But suddenly he converted to Islam and took away the two sons from the mother and he wanted to convert the sons to Islam too.
"This is not fair. If you take this matter to court just because one of the spouses is a Muslim, the Federal Court has no decision but to say that this is under the jurisdiction of the Syariah.
"That is what I said it should be extra legal. Once it is decided on legal matters, it is a goner for the wife. This is what I meant," said Nazri adding that it is not because he has no confidence in the judges but because he felt for the good of the children.
He said that explains the need for the commission consisting of chief priests of every religion, probably with the Sultan, being the head of the Islamic faith in every state, as the Chairman.
"Let them decide extra legally and there is no need to reveal. Justice can then be done without taking the matter to court. The moment it is taken to court, Article 121 will come into play," said Nazri.
Having said that, Nazri emphasised that this is a system we have for a long time since independence. He said there were no complaints during the years after independence in the 60s and 70s. It is the same system, and he said everybody was happy then.
But today we are more vocal, forthright and and not afraid to say our piece. So, of course, there is some unhappiness with the appointment of judges. But that is not because of the system, Nazri said it is because of individuals. In this instance, he asked why must we throw away the system when one may not be happy with the choice made by the Chief Justice.
He went on to ask what if we are not happy with the choice made by the commission.
"Are you telling me that everyone is going to be happy with whatever decision made by the commission? No way. You cannot get 100% approval from the public", said Nazri.
Nazri said it is a question of choice of the public. But Nazri said it is not true that it is the choice of one person. If one looks at the Constitution, Nazri said appointment can only be made by the king on the advice of the Prime Minister after consulting the Chief Justice and the Conference of Rulers.
He said if one knows the system, one ought to use the system. It is not just one person – the Prime Minister, the king (even though he acts on the advice of the Prime Minister), 9 Malay Rulers and the Chief Justice. So, there are actually 12 important people who are responsible for appointing the judges in the courts.
"If that is an easy thing for the Chief Justice to do, I am asking you why until now the Chief Justice is not able to appoint the successor to Tan Sri Siti Norma Yaakob who retired on 5 January this year as the Chief Judge of Malaya," he asked.
"If it is so easy – if you think that the Prime Minister will just accept any name given by the Chief Justice, if you think the Malay rulers would accept any name given by the Chief Justice, then her successor would have been appointed", said Nazri.
"Why? Why?", Nazri asked, revealing that there are difficulties at the moment.
"Because there are clever people who don't attack the system. They look at the system, and they went direct.
"Some to the Prime Minister, some went to see the rulers and gave their opinions. That is why until now the Chief Justice has not been able to appoint because it is not what you say a smooth ride. Because the names given by the Chief Justice – one or two – probably I do not know – not accepted by the Malay rulers. I do not know. May be the Malay rulers asked for more names or may be the Prime Minister wants to see more names, not just one or two which the Chief Justice has given to him," Nazri added.
So, Nazri said this is the system, and one can always see the Prime Minister. If there is anything wrong, Nazri said, it is because of the individuals.
"If in the past, the judges elevated were not prominent people, then probably, I do not know, the Prime Minister then was not too concerned about the judiciary. I do not know," said Nazri.
"But I do know that the present Prime Minister takes things seriously. He just does not accept any name given by anybody, even from me", said Nazri.
Nazri related that when he had a few appointments to be made to certain boards, the Prime Minister had asked for more names when he gave him the names.
"Here, what I am trying to say is that it is not system. Even if we have the commission, what if the individuals are not up to our expectations?
"As I have said, they can also do things which we may not be happy about. That is why what we are thinking about is not to change the system.
"The system has served us well for many years. You mentioned various names – whether they are in the executive or judiciary. Actually, the problem is the individuals. So, you don't like what the individuals did and so you want to change the system to the new system.
"And in the system, there are still things you are not happy with, like things done by the commissioners. So, let us change another system? I am saying here it is not the system. The problem is the various individuals who hold the posts.
"In my opinion, because it is the individuals, we must be smart enough to use the system. As I have said, you can always go and see the Prime Minister or the Sultans and give your opinions. They will listen to you. That is why today after 4 months, the Chief Justice is not able to appoint the CJM, probably because there is a problem with the names of the nominees given by the Chief Justice," Nazri said.
Therefore, Nazri said it is the right of the Bar Council members and lawyers to go and see the Prime Minister.
He went on to say it is not fair to talk about the independence of judiciary and independence of the 3 branches of government if in Parliament, the Leader of the House has the right to appoint anyway he likes and the Prime Minister is given the liberty to appoint the cabinet ministers. Why should similar right not given to the Chief Justice?
"I think we have not been fair to the judiciary. If we allow the Leader of the House and the Prime Minister to do it, and when it comes to the judiciary, we must have the commission, I think it is not fair," said Nazri.
He asked how independent can the commission be when we talk about constitutional monarchy in this country. They will always be beholden to somebody.
"Where do the judicial commissioners come from? If they say they come from heavens or God has appointed him, then they are independent. But in this country, the king is not an absolute monarch.
"I find it difficult that we can actually have a commission which is really independent, independent in the sense that we all want and understand.
"In my opinion, the system shall remain as it is. What is important here is to convince me is true like what Zaid said. I still need to be convinced. But no problem. Even then it is not important whether I am convinced or not.
"I think the person you should have called to appear here is the Chief Justice. Not me", said Nazri.
Nazri said he hoped when we talk about the independence of the 3 branches of the law, we do not talk with forked tongues.
"In one instance, you will accuse me Nazri from the executive interfering with the judiciary the moment we have the commission.
"I do not want people to be hypocrites. If we say we want the judiciary to be independent, we must practise it. And I intend to practise independence of the judiciary from the executive.
"I intend to do it. For as long as I am the Minister, I want to stand up with confidence in Parliament to say that the judiciary is independent.
"But if today I agree with you and I would start the motion to have this – I go back to the cabinet and convince the cabinet members and then we have a bill for this commission – then I think it is the executive interfering with the judiciary', Nazri said this at the end of his speech.
In reply, Zaid said he had difficulty at the conceptual level.
"Let us talk about independence. Surely, if you table a bill, Sir, tomorrow in Parliament setting up the commission, how could that be interference?
"Only a couple of months back or last year, we submitted a bill on the retirement age of judges and it comes from the government, how can you construe that as interference?" asked Zaid.
Zaid went on to say: "As the government, you are responsible for a lot of things, including the state of the judiciary. If you find something is not right, it is incumbent upon you to change it. That is not interference in the way that you mentioned, Sir. Interference there will be like this: Let us say one Lord President who said we wanted to have 9 judges hearing this case, and you don't like that and you sack him, then that is interference!"
Zaid said another example would be like a high profile case coming up involving a celebrity, one judge had been fixed for the case and suddenly another judge had been asked to hear it, then that is interference.
"Then people will ask why. But if you do it for a good reason, and we have plenty, then that is not interference", said Zaid.
As regards Nazri's assertion about the appointment of the Chief Judge of Malaya, Zaid asked why is it so difficult. He said it is exactly his point that the process must be clear as the appointment of the Chief Judge is a very important position for the country.
"So for all you know, our present Chief Justice must have given a name which is not acceptable for a very good reason. That would not happen if we have a transparent system and if we have a proper vetting process.
"What you are asking us to do is to be involved in jockeying for positions which we are not good at. It shouldn't be for jockeying for positions. This is a position of honour.
"We shouldn't be going and say I want the job or I want so and so to get the job," said Zaid.
Zaid said this is the proposal to help the government so that no one would tell you stories because like in England, India and Australia most of the judges were practitioners. Zaid said the Prime Minister is not expected to know all these details and so the Conference of Rulers.
"And I am sure the Chief Justice who is very busy, I mean the matter of writing judgments was raised in Parliament and obviously he is very busy, how do you think he will get the right man?" asked Zaid.
He agreed that of course there is no assurance or guarantee that even this commission would be "independent", but he said he would worry for the country if there is no such thing.
"But this is what is happening. There is this mega superpower in control of everything in our lives and in the organs of government and this is worrying," charged Zaid.
Zaid added that we must strive if we believe in democracy, in freedom and rule of law and that there must be checks and balances and power and authorities must have limits. He said we do not need to be very wise to understand this, adding that judges are there to make sure, to the best of their ability, to provide that guidance and protection on the limits.
Of course, he said Julius Caesar, many rulers and people in power would not agree with this because power is very addictive. It gets better as it gets a lot more. He said that is why the founding fathers of this country have this in the constitution about fundamental liberties, freedom and that judges must be selected with care because they are guardians of these and nobody else.
He recalled the words of Justice John Marshall in the early years of the American Independence that the greatest scourge the heavens ever inflicted on an ungrateful and sinning people is to give them a judiciary which is corrupt, ignorant and dependent.
"I pray that we do not have that kind of judiciary", said Zaid, adding that we have to fight for this and make sure that in this country, the rule of law prevails and not discretion.
Zaid said he would be worried if it is the Prime Minister who decides the list.
"Of course, the Constitution is like that. The Chief Justice refers the list to the Prime Minister, but that is just formality.
"The actual practice in the democracy is that the real list comes at the level of the judiciary because they know best. Can you imagine if the Prime Minister selects our judges?" asked Zaid.
But we cannot have that, Zaid said because we must have limits to authority. We cannot have a government ruled by law by whatever said by the executive. That is why, Zaid said, we must believe in independence and separation.
Finally, Zaid said while he understood why Nazri wanted to include some extra judicial means and process and religious teachers in sensitive cases, a grievance is still a grievance.
"An aggrieved party will always come to court because that is the last place.
"So, we can do all those commissions and sub–bodies or whatever you call them, when I said you must have confidence in the judiciary, you must believe that the judges we selected have that capacity, wisdom, knowledge and the understanding of the law to do justice in every case that comes before them."
Zaid concluded by saying, that is why, this process of appointment of judges is so fundamental and crucial.
Nazri responds to Zaid
Nazri said the bill he tabled in Parliament with regard to the remuneration of judges was not interference but only a matter of procedure. He added that it was agreed by the judges and he was only the postman going to Parliament to comply with procedure.
"The judges are not members of Parliament. They cannot come to Parliament and say they want their salaries to be increased. That is not the way. And because I am the Minister in charge of law, I merely, as a humble servant, did this because of procedure. The remuneration and the quantum were agreed by the judges", said Nazri.
"Of course, if you have the commission, it cannot just happen like that. It has to go through procedure, through Parliament again and humble servant Nazri will do it again. It is just complying with procedure as required by the Constitution", added Nazri.
With regard Idid, Nazri said he was found to be unfit, not because he pointed out his fellow judges. Idid was found naughty because he wrote the flying letter. He did not come forward to say that he had made the accusation with knowledge of the facts. So, he was discovered, and it is uncalled for a judge to do that to his fellow brothers.
Nazri said it was not only investigated by the Attorney General, but also by the ACA. As the allegations were found not to be true, Nazri said Idid had to go.
With regard to the commission and what Zaid said it is not the nature of lawyers to jockey for places, Nazri argued that even if you have the commission, you still have to jockey for positions with the commissioners. Nazri added that there is no law that says you cannot go and see them.
"Jockeying will still be there. As long as there are humans in the commission, there is still going to be jockeying. So what I am going to say here is – to use the system.
"If you are talking about transparency, I would tell you the transparency is only in relation to the commissioners. The commissioners will not be allowed to tell the public what they have done because it will still be official under the Official Secrets Act.
"It is the same. So let us not kid ourselves. Don't scold me for this. It is in the Constitution. It is a convention. It is a practice. I was not responsible for the Constitution. I was merely playing the game in accordance with the rules laid before I became minister.
"So if you think that you cannot go through me, it is probably because I have played the game well. It is not my fault. You cannot be angry with somebody who has played his position well", said Nazri.
Nazri went on to argue that "if you should be angry, you should be angry with our founding fathers".
"They were the ones. It has been 50 years now. Let me tell you we have been a peaceful and stable country because of the Constitution. We see countries like Thailand and Burma re–writing constitutions. Why we are still functioning as a country is all because of what we have in the constitution", said Nazri.
Nazri said he does not agree with Zaid's assertion that lawyers are the ones who know the ability of the persons who were elevated to become a judge. It means, Nazri said, that the potential judges must play to the gallery, to be nice to the lawyers otherwise you would not support them.
"I am a very frank person. I am telling you straight in the face.
"If today you don't trust the Prime Minister, at least the Prime Minister before he becomes the Prime Minister, he has got to go through many stages. Zaid knows – must be a Ketua Bahagian UMNO first, then call a meeting to be mandated as a candidate, have to stand for election and get the electorate to vote you, after that Parliament will elect you as the Leader of the House and then only you become the Prime Minister.
"He has to go through 5 stages, and so how can we say that he hasn't got the mandate to decide. That is the system and I am sure if he abused the system, he will not be there for long", argued Nazri.
But, Nazri said "if I want to be a judge and I have to please all of you, then I have to play to the gallery."
"I have to become popular because I need your support to become a judge. And what mandate do you have? You don't have any mandate compared to the Prime Minister.
"And because of that I still feel it is not wrong for the Prime Minister to make some decisions as was given to him by the Constitution because he is duly elected by the people and he has got the mandate. And if he does anything wrong, then he will have to face the consequences."
Speakers from the floor
The moderator then invited the floor to give their input, giving them 3 minutes each. The following spoke:
Datuk Mahadev Shankar, a former Court of Appeal
"2 minutes would do. I have to declare conflict of interest because I am with Zaid and I support everything he does. Now, the point I want to make is this – the commission as I see it will not be appointing the judges. All that it will be doing is to be forwarding the names of their candidates to the authorities for consideration, and the names that they forward will be open knowledge to everybody. We don't elect our Members of Parliament in secret, you know. They have got to file their papers. I don't see why judges who hold even more important positions should not be known beforehand that they are standing up for appointment."
"My comments are addressed entirely to the Honourable Minister. I fully support what Datuk Zaid has said today. I think he made a lot of sense in his usual forthright style. Two main points. The first point I like to make is I have to completely disagree with the Honourable Minister's interpretation of Article 121(1A). The Article that he refers to as providing the barrier between the Syariah courts and civil courts is not a licence for lawlessness nor a licence for unlawfulness. I think the Minister must keep in mind that the names of Lina Joy, Moorthy, Marimurthi, Revathi and so on are going to be big blots on the reputation of this country, and this problem that he refers to is not a recent one. Article 121(1A) was amended in 88. No problem post 88. The problem started surfacing in 2000. I think the question that the public has in mind is why, and if you follow the comments that have been made post Subashini, there are a lot of complaints about the judiciary. So, the second point I like to make is that in the analysis of the Honourable Minister, he completely overlooks the fact that justice must not only be done, but it must be seen to be done. And there is massive perception problem with the judiciary. Having said that, I like to thank the Minister because everything he said reinforced the need for a commission because all he has done is actually show us there are grave doubts as to what is happening in the judiciary; there are uncertainties as to what is happening in so far as the appointments are concerned, and there is a personality cult apparently because the Honourable Minister repeatedly said if we have a problem with the individual we should be addressing the individual. The problem is the individual concerned could be the Chief Justice or it could be the Prime Minister. We don't know because the way the Constitution formulation is phrased it is the Prime Minister that makes the recommendation – the Agong appoints on the advice of the Prime Minister taking into account the recommendations of the Chief Justice which means the Prime Minister could actually ignore if he saw fit the recommendations of the Chief Justice. Now the proposal for the commission – I would ask the Honourable Minister to consider the various options available. I would ask the Honourable Minister to look at the changes that were brought into play in the UK with the Constitutional Reform Act of 2005. You have the Commission there making recommendations. The Lord Chancellor can say no but if he says no, he has to give written reasons. Now I accept Datuk Shankar's point that ultimately the appointing authority will be the YDPA. We accept that. But I don't think the Honourable Minister should be trivialising the very real need for there to be a restoration of public confidence in the judiciary. There is no explanation given to us as to why certain judges have been promoted and certain judges have not. There is no explanation as to why some of the most junior judges in the judiciary are sitting in the Federal Court. These are questions which go to the heart of the administration of justice. These are questions that need to be answered. The formulation of a commission will allow for transparency – I think it is trivialising the suggestion. I think it is facetious to suggest that there will be no independence because in so saying, the Honourable Minister is saying in fact the judges of this country are not independent and that is something I cannot accept as a concept."
Chew Swee Yoke
"I remember Mr Chairman when you and Datuk Zaid and I were in the Bar Council when we were accorded the courtesy of looking at list of candidates for judiciary. And we, comprising of members, representatives from over the country were able to give our views of these candidates within the closed door of the council. Now that was in the 70s. And if I remembered, it worked very well. Yang Berhormat is talking about the system which has existed since Independence, he says. I think it is quite obvious. By the way, Mr Chairman, if you give me only 2 minutes, I won't be able to say everything I need to say. (Chairman: I'm sorry, you get 3 minutes. Not 2 plus 3 but 2 plus 1.) We have this system since Independence. That's true. We had individuals in the system since Independence. Now there are 2 things obviously wrong with this country. One, public opinion doesn't seem to be taken into account of. Two, there is no such thing as giving credence to public conception. Now if you have these 2 things, Mr Chairman – public opinion given some say; public conception being important in the sense that as Datuk Zaid has said if the public sees certain things as not being right and they express their opinions and the government takes that into account, then there is this check and balance. Now it is all very well to talk about an independent judicial commission or the system. Obviously you need to have right thinking people to do what they are supposed to do within the system. Going back to the 70s when we had the system where we (I am talking about the Council) were given a list and we could express our views. As Datuk Zaid has said we are practitioners (Interjection by Chairman: "Ms Chew, you have to wrap it up in 1 minute) and as practitioners we would know what has been happening. So we give you our input. We know who is qualified to be a judge, and by that we mean not just independence, right thinking, fair–mindedness. So there are so many things wrong, Mr Chairman, with this country at the moment. Even if you give 2 minutes or 3 minutes to everyone in this hall will never be able to solve the problem."
Datuk Shaikh Daud
"I just want to bring 2 things. I think the Honourable Minister is not right in saying that we can lobby the rulers because when the matter is referred to the Conference of Rulers, it is not for their consent. They don't have to consent. It is just a courtesy to refer to them. Even if they don't consent to an appointment, the appointment can still go. Now secondly, if to follow what the Minister says that there is no need for a commission, why is that the lowest rank in the judiciary i.e. the magistrates are being appointed by a commission and not the highest rank. A magistrate cannot be appointed by the Chief Justice. He is appointed by a commission and the Chief Justice just transfers him to where he wants him to be. So if a commission is not required for judges, why do we need one for a magistrate?"
"I would like to thank the two gentlemen for taking time off today to address this very important issue. I came in and I was very surprised but very glad to hear for the first time, at least for me, the view from a serving minister that in the past that there were individuals who were in position to make decisions that have affected the way the judiciary has run. I think this is the first time that we have heard this. I think the Honourable Minister and us are on the same page in the sense that – Yes – the present system places too much in the hands of an individual. Hence a minister has himself pointed it out, the fallout from an individual being fallible is a shattering for the judiciary. That is why we are trying to move on from placing too much decision–making in an individual because as the Honourable Minister has recognised, they are fallible. We place the decision making process in a body of persons. We are not saying that they are not fallible because likewise they are all human beings. But as in appellate benches, we always think that more than one head is better. It decreases the chance. We are not saying that moving to a judicial commission achieves perfection. We are saying it makes better what was not good. So I think we should bear that in mind. The other thing was the question posed by the Honourable Minister – he says why should we deny the Chief Justice the same privilege of appointing his team when the Prime Minister does so for the executive and the Leader in Parliament does so. I think – 2 differences. One, we accept that members of the executive, politicians elected into Parliament are not independent. They are there serving certain political parties. Judges are expected to be wholly independent. So when the Prime Minister picks his executive and his cabinet, he picks them on the basis not of independence, but purely ability. And I assume that it must be purely ability. For the judiciary, it is not only ability but also independence – independence from the Prime Minister, independence from the Yang di–Pertuan Agong, independence from the Chief Justice as well. So I think that is the major difference why the Chief Justice ought not to be given the same privilege of appointing his team, so to speak. The second difference is appointments of judges are a life tenure. Cabinet ministers and politicians serve for a term of maximum of 5 years. So when we place people in the positions that will affect your lives with life tenure, I think it is paramount that you do have a transparent process in placing them there."
Lim Chee Wee
Chairman: "Chee Wee – 3 minutes."
Chee Wee: "I will take less than that."
Chairman: "Now, take 3 minutes. Come on."
"YB Minister, for you to appreciate whether the present system is working, you should also consult the last 2 retired CJMs because when it comes to appointment of the High Court judges, the CJ ought to consult the CJM. So, the telling question is was this done between the CJ and last 2 CJMs? I leave that to you to find out."
"Just 2 points I want to raise in relation to what the Honourable Minister has said. First was why change the system since it has been working for the last 50 years. I think Datuk Zaid did mention the judicial crisis in 1988. I think if nothing else, the need to restore confidence and integrity and independence of judiciary does necessitate to a certain extent the existence of a some form of independent judicial commission who will eventually decide candidates to be nominated or to be presented to the executive for consent and approval for appointment to the judiciary. Secondly, I find it quite interesting that the Honourable Minister mentioned something about in other countries there is a re–writing of constitutions, and do you really want it as well? May I remind the Honourable Minister that our Constitution has been amended several hundreds of times such that it is effectively a re–writing of many aspects of the fundamental provisions of the Constitution which the founding fathers put in place. Many of the fundamental liberties that were given in 1957 were sort of with provisos or now effectively being taken away. Even I am surprised, I am quite disappointed, that the Minister seems to have a very fundamentally different view of Article 121 and its amendment there which again in many ways a re–writing of the Constitution. So when the Minister says oh well what do we want – do we actually want a judicial commission? Why? Because may be a re–writing of constitution. Well, in reality the Constitution has been re–written several hundred times."
Datin Rusila bte Abdul Razak
"I think we all agree here that, not just us lawyers but especially members of the public, how important this issue of appointment of judges. Can we not consider a referendum? Let the public decide. It is their lives that are at stake. So perhaps with the Minister being here, is it not possible to have a referendum done on this issue? No?"
Ismail Ibrahim (non–lawyer)
"The Honourable Minister is correct in saying that the system we inherited from the Brits was a constitutional monarchy. May I correct the Honourable Minister that there is one person or several persons in this country that are totally independent. These are the muftis. Their bosses are the God. So we are slowly, from my observation, correctly or wrongly, moving away from constitutional monarchy, covertly towards theocracy. That is my comment. We should stop this."
Datuk VC George
"I want to first of all tell the Honourable Minister that nobody is angry with him. I think some of us are a little disappointed. I also want to thank him for coming here because obviously I mean he didn't have to come here. He could have said what he wanted to say to the media and so on. But obviously he came here not only to say what he said. As he himself said, he really came here to listen to what Zaid had to say and what anybody else from the floor had to say. I know that he listened to you people very carefully and it is hoped that he would have learnt something about what the Bar feels about this whole thing. And there is hope, I mean the Minister, after he came into power as far as power vis–à–vis administration of justice, we saw this very refreshing breeze that came through from his ministry and our President has already made a reference to that, and to almost a standing ovation. We hope that he will take note of what has been said and have a re–look at the whole thing and that will be the view of most of us here that you Sir will have a re–look at the whole situation. Now my own little one or two experiences about this question. I don't agree with Datuk Zaid this question of judicial commission first came up about 7 or 8 years ago. It has been coming up from time to time from way back when I was the President of the Bar I talked to both Tun Suffian and to Raja Azlan Shah (as he then was), talking about this and they both boo booed me and I said: "Look how do you," as you know, Minister, it is the Chief Judge who makes the recommendation to the Prime Minister, and I said, "how would you know which are the people who should be recommended?" He said, "Well, take you for instance", he told me, probably that is how I talked my way into becoming a judge, I don't know. Anyway, he said, "take you for instance", I said, "Look, Tunku, both of you know the face that I show you. You have no idea what sort of a person I am." "But if you were to," at that time we were not talking about judicial commission, we were talking about a committee of lawyers, I said, "whenever you want to appoint somebody from the Bar, go and talk to this little committee and say who do you people have in mind and we could make the recommendations." If you went on your own, you would make mistakes. You do not know as sitting up on the bench, you wouldn't know who are the lawyers that you should even consider. And I was in an unhappy situation to be able to tell both Tun Suffian and Raja Azlan Shah, "I told you so", because of 2 appointments that they made – one appointment they made and one that they were about to make because the one they were about to make, Minister, the name was actually passed on to the PM. when some members of the Johor Bar, Dollah Rahman actually, came and told us, "Look, there is a suit for fraud" against this particular person and neither Tun Suffian nor Azlan Shah knew about it. So we were were able to, I was asked to go and talk to them. I did not want to talk to Raja Azlan Shah and I went to talk to Tun Suffian but to my shock I found Raja Azlan Shah sitting there and saying, "What is the problem?" When we told him, he was appalled and he on the spot had the name withdrawn. Another appointment was made a judicial commissioner and we all know that about sometime before he was made a judicial commissioner, there was already an accusation against him of cheating, I think, in the firm. I think he was eventually charged, wasn't it Shaikh? He was charged. I suppose, to that, Datuk Shankar pointed out, the sort of commission that some of us are thinking about is one where names would be brought in and they would double check on the personalities and that would also go for people from the legal and judicial service because this commission would be manned by people who would be able to assess the people from the legal and judicial service. I think on that note I shall pass the mike back to the Minister for his last few remarks... Thank you very much...Oh yes, yes, before the Minister, as the President of the Bar, I think she has got some clout here..."
"I apologise for that Honourable Minister. But as I understand it, what you were saying is that if at all there has to be a judicial commission, the idea has to come from the judiciary. Highly unlikely that would happen simply because it is very difficult for one person who has all the power of appointing to come to the government and say I want to give up that power. So that will never happen. Number 2, perhaps I could point the Honourable Minister to the Beijing Statement. I mentioned it earlier in my speech. That statement was endorsed by our former Chief Justice. Could I invite the Honourable Minister and I would put it in our memorandum to him. That contains the minimum standards required for an independent judiciary. So in other words, if you are looking for the idea of a commission to come from the judiciary, that is where it is. It was endorsed by our judiciary. It was endorsed by the former Chief Justice. Those statements contain principles for the minimum requirements for an independent judiciary and clearly provide that there ought to be a system either by way of a commission; alternatively there must be very clear guidelines and criteria, transparency in the appointment process. So perhaps, Minister, that is a starting point. And as I said, I would put that in the memorandum to the Minister. It is something endorsed by the Malaysian judiciary and I think if we take that as a starting point, we are well on our way to a very transparent appointment process."
Nazri's final say
In his reply, Nazri said:
"I have taken notes of the questions asked by the various people here. Let me go through one by one.
"But before that, I want to say that I am not here to be popular. If I want to be popular, then I will say I agree with you. Then I am sure you will give me a resounding send–off. But I am not here to be popular, and I am not afraid to be unpopular because I came to listen, and I am listening hard. And I still maintain that if you are in my position too, you want to do things properly. That is what I want to do and I intend to do. And doing things properly means that, you know, there shouldn't be any interference on my part as Minister in charge of law to impose on the judiciary to what I think is the best solution to the problem of appointment of judges. I will not do it. I cannot do it. As I said, judges are all human beings. Talk to them. Engage with them. Just as you all had problems with the executive 10 years ago. I remembered 10 years ago, I was Deputy Minister in the Prime Minister's Department in charge of law. It was a terrible time, but after that we did engage. And today the relationship between the Bar Council and the executive, I think, is in the excellent position. In other words, you should never give up. You should continue to engage with the judges, the CJ. Don't just discount. He is also human being. I mean if people keep on criticising day in, day out, making some remarks, sarcastic. Now, how do you expect the CJ to come and listen to you? So, if you really feel about this, go. Go and engage with him. You must never give up just like our relationship is now much, much better compared to what we had many years ago. And that is because we engaged. You took the trouble to come and see me. Ambi and Yeo, before this. I also took the trouble to open up my doors to the Bar Council members, to the Bar Committees. Only this afternoon, the Negri Sembilan Bar Committee met me, the KL Bar. So, it is all about engaging. I have got no problem with whatever system. I am not going to be a judge. So, I don't have to please the CJ. If I want to be a judge, then probably I will defend this system vehemently because if I can, the Chinese say, kao–tin with the CJ, then I will be elevated. Not just High Court judge. May be terus jadi Court of Appeal. I have got no interest in this. And I want to maintain that if it comes from the judiciary, I have got no problem. I merely comply with the procedures. I will table the bill if it comes from the judiciary because I said I want to do things properly. And because of that, you can give the memorandum. No problem. I can assure you first thing tomorrow morning, it will be in the CJ's office. It will be there because I am not going to tell him that, you know, "Look, you should change". I won't do it. He has to decide for the judiciary. I know it is a problem. I know it is a problem, but you must not push the problem to me. It is your problem with him. I have got excellent, you know, relationship with him, with CJ, with AG which we never had before. So, when it comes to this, you have to engage with the CJ. I am sure how hard the person is, as it says, if you keep on, the water, keep on splashing against the stone, it erodes the stone over years. And probably you may discount him and you may engage with the next person. He won't be long and I think he is going to leave next year. Start from now. Use the system. Start from now. I don't see any problem giving, asking the list from the Bar Council, but I think it is not happening now because probably we are not engaging with the CJ. So, it is also up to us. As I said, I have got no interest in this. I do not want to be a judge. I am happy as I am. You all have to please me. You think I am so powerful. I listened to Zaid say in his earlier remarks – very influential and all that. For the few seconds, he said that I was so, you know, I don't know how I felt, but only for 2 seconds. After that I come back to the reality. So, I have got no interest in this. You have to do it. If you believe that there should be a change, you should do your part – the Bar Council. Engage with the judiciary."
He then went on to reply to the comments:
"Datuk Shankar, of course, MPs, we have to be known because we are elected. People have to know whom they are electing. In Padang Rengas is me. In Kota Bharu is him. But judges are appointed. They are not elected. If they are elected, then probably, you know, people ought to know also who are going to be their judges. If they are elected, they got to know. But if they are appointed, you will know after the appointment.
"Mr Imtiaz. He is not here? Where? He ran away? Not man enough to listen to my.... where is he? This is problem that we have with some people. They stand up, they talk, the agenda was just to ridicule the person in front and after that, they left. So, I will not comment on what he has said because he is not here. There is no point. But if he is here, I just want him to know all he said was that he disagreed with me. But it doesn't matter to me whether you agree with me or not. It is important that I should agree with you because I have the facilities, the power to do what you want. That is why you called me today. So, it is important that I should be convinced. It is not important for Imtiaz to say he is not happy with me. It doesn't bother me at all because, you know, it is I am, I am the one you should convince. Not him. He wants the commission. So, he has to convince me. You just don't stand up there and say I am not convinced with what the Minister say. I disagree. Whether you agree or disagree, the system is there. So I just want to say here, we are here seriously talking about setting up a commission, and it is important that I am the one whom you are going to convince. It is not important to me whether you are convinced or not with what I said because if I am not convinced with what you said, the system remains. So we should know where the priority is.
"Ms Chew. Public opinion. I would like to ask you... Ms Chew is here? Good. At least you are "man" enough. I have to mention "man" enough because she is a woman. Ms Chew, you talked about public opinion. Does public opinion mean the feelings, impressions and of only the legal fraternity? Or public opinion means the public on the ground. I want to know. Are you saying that one voice of the lawyer equals to one thousand voice of the ordinary people? It is not. So, public opinion means the whole public. And you know the opposition has brought up this matter not in 1 election, 2 elections, but 4 or 5 elections, talking about how they were not happy; they were not happy with the system. And yet every time we stood for election, we were returned with a strong majority. So what is public opinion? You tell me. Are you saying that it is important what people on the ground, those kampung people, what they think...ah they don't know lah, they just vote? Are you belittling their opinion? You think they don't read papers? They don't read what is written in the papers all this talk about unhappiness with judges? Do you want to say that, you know, they are common folk? When you talk about public opinion, to me, it means the general public. And if they buy your story, if they bought your stories in the past, they would have registered votes against us. So, which public opinion you are talking about? And as I have said, in every elections, they have raised this. So, to whom do we listen? Just to you? One lawyer's voice equals one thousand common people's voice? So, you talk about public opinion, again it is the general public. And they keep on coming to the courts to register their cases. There has never been a drop in a number of cases registered with the courts – from magistrates' until the higher courts. There has been increase. Of course, you say that, you know, there is no choice. But there is a choice – arbitration or you go settle out the court but people still go to court in spite of the "crooked" judges that we have, said by you. So what I want to say here is that, do not under–rate the general public in voicing their opinion. When you talk about public opinion, it is not just the opinion of lawyers but the opinion of the general public.
"Datuk Shaikh Daud, you said that, you know, the Sultans, consulting them means just informing them. You think so? It is not, it is not. I am telling you. I can't tell you the whole thing that is happening. I am aware, but I am not at liberty to tell you what is happening now. But for you just to think it is such an easy thing to do, to appoint a CJM, it would have been done in January because Sultans do not regard that consulting them means just informing them. That is why now there is a delay, and also the Prime Minister because he does not just accept any names given. That is why there is a delay. And you know how the Malays are with the Sultans. Yes, we say the Sultan is just a constitutional monarch, but try and go to the ground. The Malays are feudal people. They are. Even though the Sultans are just constitutional monarchs, but Sultans have a say. And being feudal, being people who respect their Sultans, it means a lot to them even though these are constitutional monarchs. But in actual fact, we listen to them. It is not easy, Datuk, to deal with Sultans. It is not easy, I am telling you. This is special system in our country. It is a special system because the Malays, you know, when it comes to their Sultan, it is different. Even though I am the Mentri Besar, what the Sultan says does count. So, do not say that, you know, just because they are constitutional monarchs, you know, we can do simply what we like. In reality, it is not like that. It is not like that. Just this, you know. Magistrates and Sessions Court judges, of course, they are in leg