Defining Ideals: The JAC Bill

The tabling of the Judicial Appointments Commission Bill 2008 in Parliament is a momentous event for what it implies.

For far too long, civil society’s concerns about the state of the Judiciary had gone unaddressed by the Government. It seemed that that the acknowledgments this would require, and their implications, were too problematic for the Barisan Nasional to generate the political will this would require.

Consequently, rather than deal with the situation Malaysians were emphatically told instead that all was fine. In this, warnings from various quarters and mounting indications that the institution was in a tailspin went unheeded. The nature and extent of injury this has caused to the institution and our system of law is something that we may never fully recover from without radical steps.

The value of the Bill is chiefly in what it allows Malaysians to do: to move forward and to start looking at solutions.

Though the rhetoric from the Government since March 8th has been welcome, there had been neither tangible acknowledgment of the need for reform nor any concrete indications that steps were going to be taken. The tabling of the Bill has however changed that and we are now on far firmer ground to do what needs to be done. In the same vein, it is also noteworthy that in promoting the establishment of an appointments commission, the Government has also conceded that the way in which judges had been appointed in the past had compromised the independence of the Judiciary.

The utility of the Bill must however be measured against its declared objectives. That the genesis of the Bill lies in the unfortunate events underlying the Lingam Video Enquiry cannot be ignored. These centered largely on the perceived absolute discretion of the Prime Minister to unilaterally determine the appointment and promotion of judges. I say perceived because there had been a time when the constitutional provision concerned had been understood to mean that the Prime Minister would defer to the choices of the leaders of the Judiciary whose advice would have been shaped through consultation with the leaders of the Bar. In this way, care had been taken to ensure that one person did not shape the Judiciary, even if that person was the Prime Minister. As the evidence that came to light during the Lingam Video Enquiry however showed, this had become the case over time.

In this context, for the proposed law to be effective it must substantially minimize, if not wholly extinguish, the risk of this reoccurring. In doing so, one would reasonably expect the Prime Minister’s role to be circumscribed in such a way so as to impede autocratic decision making on his part.

Regrettably, the Bill does not achieve this and instead goes a long way to preserve the absolute discretion of the Prime Minister. It does this in several ways. Firstly, it is not clearly stated that the Prime Minister can only recommend for appointment those persons whose names have been put forward by the proposed JAC. This suggests that the Prime Minister is not bound to do so and can make his own recommendations.

Secondly, the composition of the proposed JAC is worrying for not only involving the leaders of the Judiciary who, as experience has shown us, are not entirely immune from being beholden to their appointing authority, but also a Federal Court justice who might suffer from the same sense of obligation as his or her peers. Four other individuals who are appointed and can be removed at the sole discretion of the Prime Minister complete the JAC. It is evident that this scheme will not inspire much confidence, given our history.

There are other aspects that are equally indicative of a concentration of power in the Prime Minister over the make-up and functions of the proposed JAC. This is worrying for they collectively undermine the stated aim of the exercise for promoting rather than minimizing the role of the Prime Minister. The scheme of the Bill is not easily reconciled with the independence that the proposed JAC would require in order to function effectively.

There are some laudable aspects of the Bill. These include the creation of a duty on the Prime Minister to promote and protect the independence of the Judiciary as well as the characterization of potential conflicts of interests on the part of members of the proposed JAC. These are however of no real value if the core of the Bill is not crystallized correctly.

As other more notable personalities have expressed, all indications point to a need for more comprehensive study and extensive debate. In attempting to give meaning to the independence of the Judiciary, a cornerstone of our system, we are defining an ideal. This is a process that allows for no compromises.

(This comment was written for The Malaysian Insider where it was published under the caption "In current form, JAC falls short of inspiring confidence")

MIS

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.

MIS

Malik Hussein And The Independence Of The Judiciary

The Deputy Internal Security Minister, Datuk Fu Ah Kiow, is wrong. The decision of Mr Justice Hishamudin Yunus in the Malik Hussein suit against the Government for his wrongful detention and torture under the Internal Security Act (ISA) is not testament to the judiciary being independent (see ‘Decision Shows Judiciary Independent’, The Star, 21.10.2007). To the contrary, it is concrete evidence of there being basis for serious concern about the Judiciary and its independence.

The judgment has been declared a landmark judgment simply because the Government lost. When one considers the case brought by Malik Hussein, it would be difficult to see how any judge could have ruled otherwise. This is not to say that the judgment is not exceptional. It is for the fact that it is higly unlikely that many a judge would have ruled against the Government the way Justice Hishamudin did. The judgment is a testament to the independence and integrity of Justice Hishamudin, and his unwavering commitment to the rule of law.

In May 2001, Justice Hisahmudin ordered the release of Reformasi activists, Abdul Ghani Haroon and N Gobalakrishnan from detention under the ISA. They had been detained along with Ezam Mohd Noor, Raja Petra and 6 others. His judgment, which I had occasion to describe then as a ‘pioneering judgment’, was a tribute to constitutionalism and the protection of the individual from arbitrary acts of the Executive. The habeas corpus application for Ezam Mohd Noor and 5 of the others came up before Justice Augustine Paul (then in the High Court). The same grounds were advanced in support with Sivarasa leading the team there, as he had for the Ghani Haroon/Gobalakrishnan application. Justice Paul dismissed the application and held that the detentions were lawful (see here for commentary).

The day Justice Hishamudin declared the detention of Ghani Haroon and Gobalakrishnan, he also made a ground-breaking order restraining the police from re-arresting Ghani Haroon and Gobalakrishnan for a period of 24 hours.

A very short while later, Justice Hishamudin was quite suddenly transferred to the Civil Division of the Kuala Lumpur High Court. By coincidence or otherwise, he was not able to hear any further habeas corpus applications. He however went on to deliver several other very important decisions including the one in which he, correctly in my view, declared the Federal Court judgment in the notorious and highly controversial Ayer Molek case (see here for background) to be unconstitutional. Along the way, he also delivered judgment in favour of Anwar Ibrahim in the defamation case brought by Anwar against Khalid Jafri and also presided over the assault claim brought by Anwar against the Government and the former Inspector General of Police, Tan Sri Rahim Noor (see 'A Judge of the big events', The Star, 20.10.2007)

I have the highest regard and the deepest admiration for this man of principle. I moved the Court for the order suspending the re-arrest Ghani Haroon and Gobalakrishnan. Justice Hishamudin’s sense of fair play and justice came to the fore that day as he recognized that a re-arrest would be inhumane. It was a defining moment, and it shaped my understanding of how far the interests of justice could be advanced with a just man on the bench.

He embodies all the qualities that a Judge should have. His humility, patience and judicious temperament are well known at the Bar as is his willingness to learn from the lawyers appearing before him.

Which takes me to my point. With all these qualities and more, why is Justice Hishamudin still a High Court judge? He was elevated to the High Court bench in 1995. He has an excellent track record. Judges elevated after him have made it to the Federal Court, a court in which Justice Hishmudin should be sitting.

Perhaps it is these very qualities, cherished by the Bar, that has kept Justice Hishamudin in the High Court.

So, is the judgment a testament to the independence of the Judiciary? I do not think so. It is a testament to how unacceptable the current way in which Judges are elevated and promoted is. It is a testament to the challenges faced by those judges who have had the fortitude to act in accordance with the law and their judicial conscience in hard cases, challenges that, if there truly was judicial independence, would be non-existent.

For those of you who have not signed the People’s Parliament Petition – Save The Judiciary – please do so. The Judges need us as much as we need them. E-mail your name and IC number to savethejudiciary@gmail.com (to view the petition, go here).

MIS

The Nazri-Zaid Debate

Much has been written about this already (see here). The debate was, in effect, a non-starter. Zaid Ibrahim did a commendable job, not pulling his punches as he described the judiciary as "hopeless" and arguing that the system was in need of a revamp to ensure independent and competent judges at all levels.

Nazri was a surprise, not so much for speaking like a politician but rather for assuming that members of the audience, comprising largely members of the Bar, were stupid enough to believe the line he was taking. Some of this made the press and I think I would not be overstating things to say that the Minister outdid himself.

The main points made by the Minister were:

• the system of appointments is fine. It has been in place since 1957 and has worked well

• the system has its own safeguards i.e. the choice is not that of one person - be it the Prime Minister or the Chief Justice - as the Conference of Rulers and respective heads of the Judiciary are to be consulted

• that, if at all, the problem is with the Chief Justice, an individual as opposed to the system
  

• parties interested in the appointments process should avail themselves of the opportunity to interact directly with those involved in the appointments process

• all persons appointed are beholden to the person or authority appointing them. As such, a judicial appointments commission would itself not be independent

• the Government is satisfied with the Judiciary. The Government has about 98% majority in Parliament. Their view is that of the people. The assertion that there is no confidence in the judiciary is questionable
  

It does not take a great deal of thought to see that the Minister has completely missed the plot and, in having said what he did, proved the need for a commission. My reasons for saying so are:

• Justice must not only be done. It must be seen to be done. The Minister appears to have overlooked this fundamental and crucial aspect of the administration of justice. As such, it does not matter whether the Judiciary is in fact doing fine if the public thinks otherwise. The Minister did not address the serious lack of public confidence. On matters of this nature, the Government does not speak for the rakyat. It must listen. Saying, therefore, that the Government is satisfied is not sufficient
  

• There is a serious question about the independence of the Judiciary. Much of what the Minister said reinforces the concern the Judiciary is not independent. In particular, the emphasis by the Minister that the Prime Minister is the final authoritative appointing authority (my expression, not his) goes to show that the Executive does play a very big role. There is no as such no separation of powers

• In the same vein, in saying that the problem members of the public have is with the Chief Justice, the Minister in effect is saying that there is room for personality cults within this most sacred of State Organs. This is unacceptable
  

• There is a serious concern about the lack of transparency and the basis of appointments and promotions. The Minister did not address this

• Saying that all persons appointed by another would be beholden shows a total lack of understanding as to how things should be. Was the Minister saying that, in applying the same logic, no Judge is independent? One would gather so if the Minister holds true to this point

• The Minister appeared to have little or no understanding of the role and function of a Judicial Appointments Commission, nor did he show any interest in the same. The Commission would not be the appointing authority, it would merely make recommendations to the appointing authority who would have no discretion in this regard other than rejecting or accepting the recommendations of the Commission

• The Minister failed to appreciate his own role and function. He is duty bound to uphold the Constitution in letter and in spirit. He is duty bound to take into consideration situations which reveal a deficiency in the situation at hand. The Minister referred to the so called 'sensitive' cases (Subashini etc) but went on to blame the law - Article 121(1A) - without pausing to take into consideration the fact that cases of this nature are a recent phenomenon. Saying, therefore, that he is satisfied with the performance of the Judiciary and demanding to be convinced of a need for any change to the existing system of appointments is simply not good enough

It is apparent that there is the current Government does not have the political will to effect changes which are beneficial for the country. Having considered the role and function of a judicial appointments commission, what reason could there be for not introducing the measure here. That process, if introduced, would result in a stronger and more competent Judiciary.

Is that not a good thing?

MIS

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

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