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‘Seniority
relevant in promotion of judges’
The position of Chief Judge of Malaya has been vacant since
the retirement of Tan Sri Dato’ Siti Norma Yaakob on 5 January 2007. Clearly it
is desirable that this position be filled as soon as possible.
Article 122 B (3) of the Federal Constitution provides that in the case of an
appointment of a Chief Judge the Prime Minister shall consult the Chief Judge of
each of the High Courts. In our view this suggests that the consultation process
for the new Chief Judge ought to have taken place during the tenure of the
retired Chief Judge whom the Prime Minister must consult prior to her
retirement. This would ensure a smooth transition in respect of positions of
such importance as, we believe, was envisaged under the Federal Constitution.
We are concerned that seniority does not appear to presently feature in the
criteria for selection to the position of Chief Judge, when we do not yet have a
less–subjective and more–transparent system of appointment such as a Judicial
Appointment & Promotion Commission. The Chief Justice has been reported to have
stated that all Federal Court judges are eligible candidates. Naturally one
would assume that all Federal Court Judges have achieved the highest standards
before appointment to the Federal Court. In that case there is no apparent
reason why seniority should not be the first applicable criterion. If there is
any departure from seniority as the first criterion there must be strong, cogent
and acceptable reasons for doing so, reasons that will pass public scrutiny.
In any event seniority is not an irrelevant factor in the Judiciary as is
reflected in Section 8 of the Courts of Judicature Act 1964, which provides that
all judges shall take precedence in the order of their seniority.
If the issue of seniority is outdated, as suggested by the Chief Justice (and we
do not agree that it is so), then all the more so is the present method of
appointment and promotion of judges. The Bar Council has always maintained that
it is time for us to catch up with other jurisdictions that have already changed
their system of judicial appointments to one that is more transparent and with
clear criteria set out.
Disregard of seniority without convincing reasons, especially in the absence of
a Judicial Commission system, will only encourage speculation that is unfair to
both the promoted judges and the bypassed judges, and unhealthy for the system
as a whole.
The Bar Council would urge and invite the Chief Justice to open a dialogue with
the Bar Council on the issue of judicial appointments so that we may exchange
views on this issue in the interest of the administration of justice and the
public interest.
Dated 5 April 2007
Ambiga Sreenevasan
Chairman
Bar Council