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Friday, December 7, 2007

Apppointment Of President, COA: Await Outcome Of Enquiry

The radical step of nominating Tan Sri Zaki Azmi the President of the Court of Appeal conclusively shows that the Government is blind to the crisis that the Judiciary, and consequently the legal system, is in the throes of. It also shows that the Abdullah Badawi administration views the Judiciary in much the same way the Mahathir administration did; the Judiciary is there to serve the Government’s interests, and not those of the nation (I say nominating as media reports indicate that the Yang Dipertuan Agong is yet to fix the date of appointment (see, for instance, ‘Abdul Hamid is new CJ, Zaki is judiciary’s No 2', Malaysiakini, 05.12.2007).

I do not intend to call into question the appropriateness of the decision to elevate Tan Sri Zaki to the bench. I have had the privilege of dealing with him as a lawyer over a period of time, and more recently as a judge, and have always found him to be courteous, incisive and approachable, key attributes of a good judge. His appointment as President is however, notwithstanding, a basis for concern.

Tan Sri Zaki is amongst the most junior members of the Judiciary, if not the most. He is the most junior Federal Court judge. He has to date only some two months experience as a sitting judge. This is in stark contrast to other justices of the Federal Court and the Superior Courts as a whole.

An appointment as one of the four office bearers of the Judiciary is a matter of pride. It is undoubtedly the aspiration of all judges to end their career at the Federal Court, if not as one of the four office bearers. The question of appointments to office as such has a very human dimension. Like all of us who serve, recognition of dedication and quality is signaled by promotions. This is true also for judges.

Many have called into question the constant bypassing of senior judges for promotion to the Court of Appeal and the Federal Court, for good reason. Over the last decade or so, we have witnessed a startling increase in the number of promotions of junior judges over their senior counterparts. The Bar has repeatedly made calls for the establishment of an independent judicial appointments and promotions commission. At its recent Extraordinary General Meeting, the Bar called on the Judiciary to support the move towards the establishment of such an independent commission.

In his opening address at the Malaysian Law Conference this year, His Royal Highness the Sultan of Perak expressed disquiet at the erosion of public confidence and a nostalgia for a time when the Judiciary was respected throughout the Commonwealth. Much of this erosion stems from the manner in which judges have been appointed and promoted.

Judicial morale is at a low just as public confidence is. Judges are uncertain of their futures, frustrated at the seemingly arbitrary manner in which promotions are handed out. It would not be unreasonable that many wish for a better, more effective and more respected judiciary. This sad state of affairs needs to be addressed. The Bar has maintained, correctly so, that its calls for reforms are not an attack on the attack on the judiciary. They are instead a defence of the Judiciary, its members and the legal system.

In this context, it is manifest that the nomination of Tan Sri Zaki as President can only send the wrong signal to Judges. Coming as it does so soon after his unprecedented direct elevation to the Federal Court, it suggests that there is no one worthy of the position in the Judiciary as things stand. It also strongly suggests that the Government itself has no confidence in the Judiciary.

It also sends the signal that the Government wants to retain control of the Judiciary. Tan Sri Zaki’s history of service to UMNO is not in itself a disqualifying factor for elevation to the bench. However, the special arrangement made for his direct elevation to the Federal Court and the alacrity with which the Government recommended him for the post of President, so soon after the refusal of an application for an extension of the term of Tun Ahmad Fairuz supported by the Government, is cause for concern even if limited to purely the realm of perception.

This is more so for the fact that one of the implications of the Lingam Video is that the Government has been interfering in the affairs of the Judiciary in a manner not countenanced by the Constitution. The fear is that this trend continues.

None of this augurs well for an ailing Judiciary. One wonders how many more shocks it can take.

One of the concerns that civil society groups and the Bar aim to raise before the Royal Commission of Enquiry on the Lingam Video is the need for an independent and transparent appointments and promotions mechanism. It is a widely held view that such a mechanism would go a long way in helping the Judiciary avoid the fallout of incidents such as the Lingam Video affair as well as addressing concerns about unwarranted Government interference.

In light of these concerns, and the crucial need to ensure higher levels of confidence in the Judiciary, it may be appropriate for the Yang Dipertuan Agong to defer the matter of the President, Court of Appeal, until after the Royal Commission delivers its findings. This would have the additional benefit of prompting the Government to act with greater urgency to address the unparalleled judicial crisis that the nation is currently confronted with.



Anonymous said...

Welecome to the Barisan Judicary. If you thought the Barisan Police was bad or that the Barisan Elecions Commission was a bumper, don't fret, the best is yet to come..... no mater which way you turn... Pak Barsian will be there and he has a key with your name on it and the nice boys in blue will show you the road to Kamunting.

Aren't you just so damn glad that its Malaysia trurly Barisan?

Anonymous said...


Looks like the non extension of Fairuz term has made them speed things up with Zaki. They have planned this move all along but The Agong and the rulers threw a spanner into their plans.

Pak Lah should wait for the RCI ovre the Lingam tapes. That is the right thing to do. But will they do the right thing? Unlikely.

Anonymous said...

This act by the PM and the Govt is living proof that the rot that Mahathir started will not end, at least not on Pah Lah's watch. In fact this act so blatant in its conception, ececution and intention makes Lingam's mischief seem like so much child's play.

Anonymous said...

1. Have Appointments anything to do with the RCI, except they will be involved at the point when deciding which Judge or group of Judges to be appointed on hearing the case, if any prosecution have to be conducted after the RCI investigation?

2. In a layman term, the appointment is fishy. But, the key point is on the best possible appointment and cannot wait until the appointment of RCI as well as report from investigation, isn't it?

3. On the matter on RCI, the key problem is there is no proposal for the appointment of the RCI and their job specifications, such that it could be a narrow investigation after appointment of the panel!

4. Apart from these, should the Witness protection Act be in position before RCI can do the job?

Anonymous said...

He's a nice person though. I was in a hotel in PJ for a seminar which he was an honourable speaker, and while waiting for his driver, we chatted outside the hotel about quite a number of things. What struck me was that he was humble enough to give an old lady the umbrella he brought because she was practically walking in the rain and offered that his driver took the lady home first while he can wait there!

So sad that he's heavily involved with UMNO.

wutever said...

memang kalut la. perlantikan sebagai federal court judge pun ramai dok pertikai lagi, ni pulak terus kena lantik PCA, umur baru 62, CJ baru umur 65 dah, kacau2 :(

Anonymous said...

Put the right people in the right seats and the money will keep on rolling into their pockets... Put an end to this corrupt practice and bring integrity back to the Judiciary!!!

Corruption: Malaysia needs ‘stronger will’
TODAY • Friday • December 7, 2007

KUALA LUMPUR — Malaysia needs to have “stronger political will” to combat corruption, an international watchdog said yesterday, otherwise it is the country’s poor who will suffer.

The Berlin-based Transparency International (TI) said that 1,250 Malaysians who responded to their study, titled Global Corruption Barometer 2007, felt the police and political parties were among the most corrupt.

The survey found 6 per cent of those interviewed claimed they or someone in their household paid a bribe in some form in the last 12 months. “We … need to amend the legislation on corruption and enforce it, in order to make it much more effective,” said Mr Ramon Navaratnam, president of TI in Malaysia.

The global survey found one in every four people has been asked to pay a bribe to the police, and political parties and parliaments are the most tainted by corruption.

The poor are targeted for bribes in both developed and developing countries, according to the watchdog’s report.

The study “has made it clear that too often, people must part with their hardearned money to pay for services that should be free”, said TI chair Huguette Labelle.

“And they do not see enough commitment when they look to their governments and leaders.”

The study found that the countries with the highest level of petty bribery — with 30 per cent of respondents reporting paying bribes — were Albania, Cambodia, Cameroon, Macedonia, Kosovo, Nigeria, Pakistan, the Philippines, Romania and Senegal.

Telephone and gas providers were the least likely to demand bribes, while the police were the worst offenders.

TI polled more than 63,000 people in 60 countries between June and September this year. — AFP

din merican said...

Why is this Government so blur?

Anonymous said...

This is the man UMNO is choosing to chair the Judiciary Commitee. Maybe Pak Lah can think of no better person to head up oversight of Federal Courts and law enforcement. LOL