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Tuesday, April 24, 2007

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]



Anonymous said...


If the Judicial Appointments Commission is accorded with "stoney silence" from the Chief Justice, it would be much much worse with the Members of Parliament.

Seeing some of their antics in Parliament - I think it would be a humongous task to get them to debate objectively and intelligently on the Judicial Appointments Commission. I think it's akin to getting a primary kid to debate the theory of nuclear physics.

It would be even worse if the Commission proposal is NOT sanctioned by UMNO - they will be too chicken to even speak out even if they believe and support the goodness of such a commission in secret. (P.S. Remember the Chief Whip?)

MIS - I hate to sound like a wet blanket, convincing the powers-to-be for such a Commission is an uphill task.

I pray and hope that you will never throw in the towel.

Don't ever buckle from what you believe in.


Anonymous said...

Extracted from this link on Nadzri's statement quoted from NST:

“Only if a Commission can say it was sent down from heaven and appointed by God, can it truly be independent. The words “independent Judicial Commission” are an illusion.”

"The members will always be beholden to somebody, the persons who appointed them."

-Datuk Nazri Aziz
Minister in the PM Dept.

By his statement itself, he just confirms that there is EVERY urgent need that such an independent commission be established so that there is NEVER EVER a remotest chance that a judge or anybody who is in a decision making position can be cowed to make a bad or unfair judgement just because he is "beholden to somebody".

Has his statement itself also stated the bare facts that this is exactly the modus operandi of the BN govermentie base on the "beholden to somebody" policy and principle.

However, with his statement itself being the representative of the Government gives us the answer that the set-up of such a Commission will be a no-go where the Government is concerned.

MIS - where do we go from here?

P.S. I remembered reading somewhere that the Judiciary has to seen to be so transparent and blemish free tihat even a simple task of drawing up the judge's roster is clearly stipulated so that the ability to fix a judge to a particular case is unlikely to happen.

Ellen Whyte said...

Have you read May Day for Justice by Tun Salleh Abas? If not, I suggest you do. It will explain exactly why you have the legal system you do.

There's a web site version at:

But I agree with Gan: it would be such a laugh to see the YBs trying to debate this!

Anonymous said...

Another tuppence worth of mine, if its worthy after all.I say that this issue of an independent judicial appoinment commission have long been overkilled by too much talk for as long as I remembered practicing law. This is not the 1st time anyone have sought to ramble idealistically about having judges at the bench whom they like to see up there help them win cases rather than the judges who would kill their briefs even before coming to trial. Its a rumble kicked started by lawyers and it will be ended by politicians the way i see it going.There's too much fire and fury about it but it will come to nothing. So what if we will get this commission institutionalized at the outset, then what? It will figure a more independent judiciary? Or a more capable judiciary, if that's more in need than ever now. For all we know, the selection committee (for judges)would comprise of retired lawyers or judges. or maybe MIS be one of them..come on man..get a grip on the real world. If we want good, able and independent judges in the judicial system, dont you think we should need the best and able of lawyers to test their adjudication process when they are up there at the bench? Why politicized them? Lawyers could and have changed the judicial process in the past, so whats stopping them now..oh i get it! its easier to make those changes if we have a judicial commission who could do it for us..touche bros..touche! and this is not a wet blanket statement too..imagine that! Now's the time to shake the tree bros..shake it and you get the rotten judges(who dont adjuducate well)'harvested' out..and i mean it will be one big harvest.

Anonymous said...

katztales said "Have you read May Day for Justice by Tun Salleh Abas? If not, I suggest you do. It will explain exactly why you have the legal system you do"

You can say that again, Sir and nice bunch of cats to have there.

Dear Malik, this may sound preposterous to most, but I believe a solution to our legal system and other anomalies in Malaysia cannot be found at these forums, but at a higher register. We are shouting ourselves hoarse because when it comes down the pike, a true adherent found on the bench or in Parliament just cannot be depended on to defend a ‘secular constitution’ notwithstanding their oath to do so when they took office.

Consider this Malik. A theological cloak is thrown over Malaysia by the ‘Wahabbi’ when our first Prime Minister was appointed OIC Secretary General in 1969.

Then with the 121 amendment in 1988 and the ‘We are an Islamic country’ declaration 10 years later, it assumed the OIC chairmanship and while it is now witnessing the awakening of the Shariah, Islamists have decreed that the cloak will totally envelope it by 2020, maybe sooner.

Malik, what I’m saying is that to achieve a solution from a higher register, Malaysia has to remove this cloak off completely and to do so it has to, preposterous as it may sound, first dislodge itself from the Organisation of Islamic Conference, while announcing in no uncertain terms that it is ‘SECULAR’ in that it is, metaphorically speaking, un-islamic, un-christian, un-hindu, un-buddhist and un-sikh; and while at it, it should withdraw itself as signatory to the Cairo Declaration signed in 1990.

What I’m saying is that the OIC and Cairo are yokes which compel and pressure it from within and without to wear a particular religious linguistic in the public domain.

What I’m saying is that removing these yokes, although easier said than done, would produce a greater top-down effect, in that bench and parliament will find it easier keeping their religious linguistic private where it belongs and consequently, easier defending and defining the constitution.