Why A Judicial Appointments Commission III

Cutting Down The Politics Of Appointments

On April 1, 2006 the UK ended 700 years of legal tradition. On that day, a new Judicial Appointments Commission came into existence and was charged with the task of judicial appointments.

The question that comes to mind immediately is why was there a need for this change in the way judges were appointed. Lord Falconer, the former Lord Chancellor, was quoted in The Telegraph (on 1 January 2006) as saying, "The new body will ensure that politicians will no longer be responsible for the selection of judges," he said. "That has to be good for public confidence in the judiciary."

This puts into focus how crucial the judicial appointments process is. The UK Courts have long been recognized as being a fair representation of an effective Judiciary in all aspects. Nonetheless, it was felt that there was a need for a shift. The drive towards change was led by the Lord Chancellor himself.

The shift has also taken place in other jurisdictions such as Canada, South Africa and certain states in the US.


What is a Judicial Appointments Commission?

Simply put, it is a commission charged with the responsibility of appointing judges. This involves the selection of appropriate candidates for vetting, and then recommendations of the best candidates for the posts available. The recommendations of the commission can either be binding or persuasive. The process is a transparent one and the commission can be called upon to account for its recommendations. Similarly, where discretion is left with either the Government or the Chief Justice, then these parties can also be called upon to justify rejections of recommendations.

The UK models is a good illustration. Under the relevant law (the Constitutional Reform Act 2005), a Judicial Appointments Commission has been established (by the same name). Its primary aim is to select suitable candidates on “merit and merit alone”. The Constitutional Reform Act spells out how this is done. In essence, the following steps are taken:

• The Commission selects the judges in accordance with procedures it establishes

• In doing so, the Commission consults senior judges not sitting on the Commission and who are not up for selection (the selections power includes selections for judge of the Supreme Court, the Deputy President and the President) [for Ireland, Scotland and Wales, there are other persons identified who are to be consulted]

• A report is then prepared and submitted to the Lord Chancellor (the head of the Judiciary). This reports specifies the candidates who have been selected and the senior judges consulted

• The Lord Chancellor then consults the persons consulted

• The Lord Chancellor may reject or require reconsideration of the selection BUT must give written reasons for the rejection or the requirement for reconsideration

• If there is a rejection or a failure upon reconsideration, the Commission is not allowed to select that person. Other candidates are to be considered

• If accepted at any stage by the Lord Chancellor, then the names of the candidates are forwarded to the Prime Minister who has no discretion in the matter.

The process outlined above ensures accountability at all levels: the members of the Commission must be able to justify their selections. Similarly, the Chief Justice must justify his decision to reject or require reconsideration.

There is no shroud over the process and the Prime Minister is given no say as to who is appointed and who is not. I do not see anything counter-productive with this system of appointments.


Efforts In Malaysia

The Bar Council has submitted memoranda explaining the need and reasons for a Judicial Appointments Commission in Malaysia. The Bar had until recently been met with stony silence. The current Chief Justice, Tun Fairuz, has questioned the motives of those who advocate the establishment of such a commission (see NST, 22.02.2007 – Independent Judicial Commission: Chief Justice Questions Lawyers’ Motives). The Chief Justice appears to have made 3 points in response:

• He requested that a memorandum be submitted. He overlooked the fact that a memorandum had been submitted by the Bar on the subject

• In asserting that the process had been transparent (without explaining how this was the case in light of the selection process employed), the Chief Justice asserted that transparency had its limits (no reasons were given for this suggestion other than freedoms cannot be absolute), the Chief Justice asserted: “Don’t tell me when we are transparent, we have to be nude. That is not transparency, that’s nudity.”

• There was no proof of corruption on the bench and that members of the public would make allegations about judges as 50% of litigants lose cases. Judges, he continued, were not popular.

The analysis of the Chief Justice, respectfully, shows a lack of appreciation of the issues involved. The Judiciary serves a valuable role in the separation of powers. Public confidence must be maintained. Public confidence is at a low. The situation does not appear to have improved very much since the tenure of Tun Dzaiddin and, at the very least, no obvious steps have been taken to deal with low public confidence. There have been other cases which have created a sense of dissatisfaction (as discussed in the previous segment).

The perception of the Judiciary of itself is not a defining factor. In as much as the Chief Justice may say that all is well, he does not speak for the nation. As an interested party, he in fact conflicted. He cannot say otherwise as this would impact upon his position, the Chief Justice having a role in the process of appointment of judges.

My view is that the nation would benefit tremendously from such a commission for obvious reason as has been explained previously.


Where Do We Go From Here?

Ultimately, it is for Parliament to decide what to do. It is for Parliament to put the commission in place, not the Judiciary. This is as such an issue that must be brought home to our Members of Parliament. They must be made to see that the question of judicial competence and integrity is one that goes to the heart of who we are as Malaysians.

[This evening, at 5 pm, the Bar Council will host a debate between Datuk Zaid Ibrahim and Dato’ Seri Mohamed Nazri on the motion: There is a Need, in Malaysia, to Establish an Independent Judicial Commission in Relation to the Promotion and Appointment of Judges. It is open to the public. Places are limited. To register or make enquiries please contact Lojini 03-20313003 X 101 or email rezib@malaysianbar.org.my]

MIS