Friday, April 18, 2008

Judicial Appointments Commission

I read with interest the announcement made by the PM on the setting up of the Judicial Appointments Commission and the putting to rest the ghost of 1988.
The Judicial Appointments Commission to be set up will be responsible for the nomination, appointment and promotion of judges and to review the terms of service and remuneration. The announcement made was with the intention to revitalise the Judiciary. The PM was reported as saying by the NST 18th April 2008 as follows :-
"The commission, he said, would identify and recommend candidates for the judiciary to the prime minister. "While the constitutional prerogative of the prime minister to put forward names to the Yang di-Pertuan Agong will remain, the commission will help to evaluate and vet candidates in a systematic and credible manner for the prime minister, based on clearly- defined criteria."
The announcement was made at a dinner hosted by the Bar Council Malaysia and attended by "Other notable guests at the Bar Council dinner were opposition leaders, including Parti Keadilan Rakyat president Datin Seri Dr Wan Azizah Wan Ismail, DAP adviser Lim Kit Siang, Pas deputy president Nasharuddin Mat Isa and its secretary-general Datuk Kamaruddin Jaffar." (as reported by NST too)
I am just wondering who would be the members of the Commission. Will the Bar Council play a dominant role? And what about the principle of conflict of interest as members of the Bar Council will be the interested party in any appointment of Judges?
In order for Judges to be appointed, they must fulfill certain criteria and requirements as laid down by the Federal Constitution. With the setting up of the Commission, a few other questions must be answered.
  1. Can the Commission ensure that the Judges appointed using this new process be free of corruption and other malpractices?
  2. Will there be any quota according to the racial composition of the country?
  3. Will appointment be made purely based on merits?
  4. Will the Commission make recommendations for appointment from amongst the practising lawyers only or will it be responsible for all appointments including from the Government service and non-practising lawyers as in the case of law lecturers etc.
  5. What will happen if in the event the Prime Minister did not follow the recommendation of the Commission but instead named a person of his own choice in accordance with the provision of the Federal Constitution as it stand unamended?
  6. Or, will the Constitution be amended to compel the Prime Minister to accept in toto the recommendation made by the Commission?
  7. Can the Commission ensure the elimination or the absence of the element of lobbying for the Judgeship?

Why did the PM made the announcement at a function hosted by the Bar Council attended by Opposition leaders and not at a function organised by the Government attended by Government leaders? Was it to please the Opposition since Zaid Ibrahim the de facto Law Minister was talking about it since his appointment as a minister?

If the Lingam case was the reason for such a move, why not wait for the Royal Commission hearing the inquiry publish it's findings and recommendation?

Why was Zaid so adamant about wanting to apologise to Tun Salleh Abas and the other 6 Judges of the 1988 episode? After 20 years had passed and we have seen 5 General Elections carried out by the country, was that the one and only reason the Judiciary being not independent? We are actually talking about personalities here. Commission upon Commission can be set up, individuals will remain individuals. One can be pious and learned before being appointed a judge and can change to become a crook later.

Let's separate the issue.

The appointment of Judges have nothing to do with the episode of 1988 and the Bar Council consist of not more than 13,000 members as compared to the 23 million other citizen of Malaysia.

Let us look at the 23 millions rather than the 13,000. Why didn't the PM made the announcement after the Cabinet meeting with the presence of all the Cabinet Ministers? Isn't that the normal practice? Did the PM try to please the detractors?

There are many lawyers and legally qualified persons in the Cabinet. Naming a few, includes Rais Yatim, Syed Hamid Albar, Hishammuddin and Azalina. Did the PM listened to Zaid alone?

I wonder too whether any studies have been made of the position and the system of appointment of Judges in other Commonwealth countries. Have we looked at Singapore, India, Pakistan for that matter?

Talking about the doctrine of Separation of Powers, what is wrong with the system that we practise in Malaysia?

The appointment of Judges is a crucial matter and Judges who sit to hear cases involving the well being of the country must be properly chosen. In matters of administrative and constitutional laws, we need Judges who will put the country first and not the matter of freedom and human rights above the nation.

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