Read HERE articles related to Malaysian Judges, and HERE and HERE
"...the law is only as good (in application) as the person who interprets and applies it; the Judge.
It is the Judge that administers the law.
For this reason, one of the most important processes in the system we operate in, is the appointment of judges. This process is intended to ensure that the person who is appointed as a judge or who is promoted to senior positions is qualified for that role.
... unless the right person is appointed, the law is bent and twisted out of shape.
And the system we live in begins to disintegrate.
Moorthy, Syamala, Lina Joy, Kamariah Ali, Subashini cases have all happened on the current Chief Justice’s (Tun Ahmad Fairuz bin Sheikh Abdul Halim) watch.
The current CJ has declared more than once that seniority is NOT a decisive factor. Some of the more JUNIOR members of the judiciary (in terms of years of service as a judge, not age) are sitting in the Federal Court and the Court of Appeal.
.... there are very accomplished senior judges who remain un-promoted"
-Malik Imtiaz Sarwar
Click here : List of Names of Malaysian Judges (as of January 2007)
EXCERPTS: Read HERE for more and HERE
Our Lives Are Shaped By The Law
It is crucial to remember that the system we live in is entirely shaped by the law.
The Federal Constitution, as the supreme and basic law, sets the foundation.
The space in which we exist and correlate is also shaped by the law. The law puts in place a framework that becomes the basis of our expectations of each other in our public lives.
The law affects and shapes us in so many ways. It is defining.
This is why the Federal Constitution as the Supreme Law is so important.
By entrenching basic personal rights, the Constitution seeks to ensure that our private space is protected in such a way that we can live our lives privately and as we wish to.
The only condition is that where our private lives intersect with public life, then we cannot act against the general interests of anyone else.
This is easily illustrated by the guarantee on the freedom of religion.
Article 11(1): guarantees every person the freedom to profess and practice a religion of choice.
That means that if I wanted to profess the religion of satanic worship, I could.Article 11(5): provides that my freedom cannot be invoked to justify acting against general law relating to public order, public health or morality.
The Law Is Only As Good As The Way It Is Defined And Applied
What that means is that while I can profess to be a satanic worshipper, my right to practise may be restricted if such worshipping involves acts against public order – e.g. sacrifices of virgins under moonlight.
This is because in that situation my private life – the right to be a practicing satanic worshipper – intersects with public life – the right of a particular virgin not to be murdered.
But, and this is the point of this exercise, the law is only as good as the way it is defined and applied.
Put another way, the LAW – be it the Federal Constitution or any laws made by the legislative bodies – is ONLY USEFUL in ensuring the balance described above if it is applied correctly and consistently.
This is why in common law systems, the doctrine of precedent requires that decisions of a higher court are followed by a lower court.
The presumption is that the decisions of the higher courts would be sounder – the decisions having been made by more experienced judges, usually sitting in teams of 3 or 5 – than those of the LOWER court, where more JUNIOR judge sit, usually alone.
Judges Administer The Law
This points to a very crucial feature of the legal system:
The law is only as good (in application) as the person who interprets and applies it; the Judge.It is the Judge that administers the law. For many, the Judge characterizes and embodies the law
For this reason, one of the most important processes in the system we operate in , is the appointment of judges.
This process is intended to ensure that the person who is appointed as a judge or who is promoted to senior positions is qualified for that role. Not for reasons of vanity or pride, but because unless the right person is appointed, the law is bent and twisted out of shape. And the system we live in begins to disintegrate.
Think about it. If a judge is not sufficiently competent, he or she would decide cases wrongly.
There are many consequences that flow from this: the litigant is denied justice and is put to the expense, cost and worry of an appeal.
What if the appellate judges are similarly not competent and uphold the decision of the judge?
The litigant loses the appeal, does not get the appropriate result.
Justice has failed him or her. It does NOT stop there. The appellate decision would stand as a precedent.
The law then begins to develop at a tangent until that process is stopped by a correct decision of the appeals court, if that happens at all.
And what if many of these tangents developed, different judges adjudicating differently, inconsistently? There would be uncertainty and with that, a non-functioning legal system.
Imagine the supreme court of a country deciding a case not according to the law and the facts but in accordance with the wishes of a party who has paid for a particular conclusion.
That case does not end there. It remains as a precedent, to be followed by later cases. It leads to the dismantling of the entire system of justice.
The foregoing should serve to give you an idea of why Judges are crucial and why it is essential that only qualified candidates be appointed judges.
Qualities And Abilities Of A Judge
Some may suggest that the question of who is qualified is a subjective one. (But) this flies in the face not only of logic but also of established principles applied throughout the world.
The criteria by which a person is deemed qualified are necessarily objective.
These criteria have been scrutinized time and time again and essentially revolve around two core principles – COMPETENCE and INTEGRITY.
COMPETENCE: (This) principle is self-evident; there is no room for incompetence on the bench.
INTEGRITY: (This) is more nuanced, encompassing qualities that include an understanding and respect for the role and function of the judge, a role and function that demands independence, impartiality, objectivity and judiciousness (see the 2002 Bangalore Principles of Judicial Conduct).
These two core principles can be broken down into CORE QUALITIES and ABILITIES.
The following represents a useful summary of these qualities and abilities (as identified by the UK Judicial Appointments Commission, a body set up under law to oversee the process of judicial appointments).
I think they are reflective of the perspective of all countries renowned for judicial competency and independence:
1. Intellectual capacity
2. Personal qualities:
3. An ability to understand and deal fairly:
Integrity and independence of mind; Sound judgement; Decisiveness; Objectivity Ability and willingness to learn and develop professionally
4. Authority and communication skills
Ability to treat everyone with respect and sensitivity whatever their background Willingness to listen with patience and courtesy.
Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved Ability to inspire respect and confidence Ability to maintain authority when challenged.
Appointing The Judges – The Current System
Ability to work at speed and under pressure Ability to organise time effectively and produce clear reasoned judgments expeditiously Ability to work constructively with others (including leadership and managerial skills where appropriate).
Needless to say, the process of finding the right person is not an easy one.
For most commonwealth countries, the task was left to the Chief Justice who, through consultations with relevant persons, would make the necessary recommendations to the government, which would then make the appointments.
The system provided for under our Constitution in Article 122B:
This method of appointment by its nature involves the Executive in the appointment of judges.
The Yang di-Pertuan Agong appoints judges “acting on the advice of the Prime Minister” after consulting the Conference of Rulers. Where the appointment is that of a judge other than the Chief Justice, the Prime Minister is expected to consult the Chief Justice. Other cross-checks with the relevant senior judges – Chief Judge Malaya, Chief Judge Borneo, President of the Court of Appeal – are also requires in the appropriate case.
Case law has defined the expression “acting on the advice” as precluding any discretion on the part of the YDPA. His Highness’ role is merely to endorse the advice of the Prime Minister.
And while the Prime Minister is required to consult the various parties identified and the Conference of Rulers, the provision does NOT explicitly oblige the Prime Minister to act in accordance with the views expressed to him (although one would think that this should be the case as why else is there a need for consultation).
The provision can be interpreted to allow for a high degree of accountability and transparency.
Regrettably, it does NOT appear to have been interpreted that way by the powers that be.
Rather, it has been applied literally with LITTLE OR NO regard to the spirit of the provision.
The system, as I see it, is as follows:
1. The Prime Minister chooses the judges.The public does NOT know the basis upon which recommendations are made, by the CJ or by other persons, or if there is any basis at all, reasonable or otherwise.
2. He is NOT bound to follow the recommendations of the CJ or any other person.
The current CJ has declared more than once that seniority is NOT a decisive factor.
Some of the MORE JUNIOR members of the judiciary (in terms of years of service as a judge, not age) are sitting in the Federal Court and the Court of Appeal.
I know for a fact that there are very accomplished senior judges who remain un-promoted.
Things do NOT appear to have moved that much forward.
Moorthy, Syamala, Lina Joy, Kamariah Ali, Subashini cases have all happened on the current Chief Justice’s watch.
The Subashini decision has prompted outrage and questions about competency and impartiality. Even if there is no basis for this outrage (at least where the judiciary is concerned) it cannot be denied that the perception is very much otherwise.
The perception is that justice is NOT being done. Put another way, justice is NOT being SEEN to be done.
The situation described above goes back to the JUDGES who interpret and apply the law.
As stressed in the earlier part of this series, the buck STOPS with the judges. They make the decisions.
There is NO meaningful consultation with the Bar Council.
I do not know of the Bar Council having been asked for its views on potential candidates. This was however the case prior to 1988.
Appointments are therefore done on a basis that appears to have precluded any meaningful consultation.
Put another way, the appointment of members of the most crucial organ of the State are left to the discretion of ONE person. The margin for error is extremely wide, to say the least.
Is This A Good System?
The scenario is worrying as:
- There is, in effect, NO separation between the Executive and the Judiciary. Put another way, there is NO independence.
- There is NO certainty as to the basis upon which appointments are made and promotions given. This lends to the possibility, at least in appearance, that judges may pander to the appointing and the promoting authority or authorities
- There is NO certainty as to the competence of the judges appointed. All we have is the say so of the Chief Justice and the Minister of Law.
The events of 1988 and that followed the sacking of the former Lord President destroyed a very credible judiciary and in its place established a judiciary that has been the subject of damning international reports by credible legal bodies (see e.g. the 2000 ‘Justice In Jeopardy’ Report by the International Bar Association here) for its lack of independence.
This is not just about the high profile ‘political’ cases like the prosecution of Anwar Ibrahim, Lim Guan Eng, Ezam Mohd Noor (to name a few), or the various ISA detention challenges. This is also about commercial cases amongst which the Ayer Molek affair (see the IBA report) is amongst the most notorious.
When Tun Dzaiddin was appointed Chief Justice in December 2001, amongst the first statements he made was one in which he admitted that public confidence in the Judiciary was at the lowest points it had ever been.
This was not surprising bearing in mind the number of eyebrow raising events involving the judiciary at that stage.
The question for us is then do we have an alternative option that can help us address this situation i.e. the lessen doubts about the Judiciary and its performance.
The answer is a resounding ‘yes’. A Judicial Appointments Commission.
(to be continued... watch this space or go to HERE )
COMMENTARY: READ HERE
" In the current controversy, the perception of the Malaysian public is this:
The wisdom of our civil court judges, especially our learned Muslim judges involved in these cases, is being influenced or coloured, knowingly or unknowingly, by their own religious sentiments and their personal prejudices, instead of being guided by their profound knowledge of the rule of law and the Malaysian Federal Constitution.
The lesson Malaysians are beginning to learn from this controversy is that situations WILL arise again and again where our learned Muslim judges will be faced with personal or religious dilemma within themselves when fronted with cases involving non-Muslims, Islam and the Syariah court.
And Malaysians expect, without any exception, that this uncertainty should NEVER be a factor, and be seen as NOT a factor, in the discharge of their duties as judges of our civil courts .
The honorable thing for these affected judges to do is to simply recuse themselves from these cases."