Why A Judicial Appointments Commission II

Qualities And Abilities Of A Judge

It stands to reason that only qualified persons should be appointed to the bench or promoted. Although some may suggest that the question of who is qualified is a subjective one, 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. The former principle is self-evident; there is no room for incompetence on the bench. The second 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:

• Integrity and independence of mind;
• Sound judgement;
• Decisiveness;
• Objectivity
• Ability and willingness to learn and develop professionally
  

3. An ability to understand and deal fairly:

• Ability to treat everyone with respect and sensitivity whatever their background
• Willingness to listen with patience and courtesy.
  

4. Authority and communication skills

• 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.
  

5. Efficiency

• 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).
  

Appointing The Judges – The Current System

Needless to say, one can imagine that 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.

This is the system provided for under our Constitution in Article 122B. 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.

This method of appointment by its nature involves the Executive in the appointment of judges. 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:

• The Prime Minister chooses the judges

• He is not bound to follow the recommendations of the CJ or any other person

• 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. 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.
  

• 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 system was put in place in 1957. We have had 50 years to see how the system could fail. 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.

Things do not appear to have moved that much forward. Moorthy, Syamala, Lina Joy, Kamariah Ali, Subashini 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.

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.

This is dealt with in the third part of this series: Why A Judicial Commission Appointments Commission III.

MIS