The Riz Khan Interview

For those who missed it or had not realised that I was on the Riz Khan show with Haji Sulaiman, here's the link

The show looks at the role of Islam in Malaysia and the reasons underlying the recent controversies in light of assertions internationally that Malaysia is a moderate, progressive Muslim country. The issues are presented through our differing viewpoints. Though the nuances of the debate were beginning to emerge when the show ended, the show provides some useful insights.

MIS

Not Just A Matter Of Labels

Secular State, Islamic State, Muslim Country. I have been asked why be concerned over what we call ourselves. After all, does political rhetoric really have an impact on our lives?

I think there are two primary reasons why what we call ourselves is important and does have an impact.


The Undermining Of The Rule Of Law

Firstly, our democratic institutions are weak. In theory, the primary organs of state - the Executive, the Legislature, the Judiciary, the Attorney General, the Auditor General - are meant to operate independently and in constant supervision of the other organs. This process is what we refer to as the process of 'check and balance'. The independence which underpins is the 'separation of powers'.

The reality is that the separation of powers in Malaysia is illusory. The Government controls more than 90% of Parliament. In this way, the Executive controls Parliament. An attempt to suborn the Judiciary to Parliament was made in 1988 when the Constitution was amended to remove the entrenched power of the Judiciary to review executive action by limiting the jurisdiction of the High Court to matters vested in it by Federal Law. Leaving aside the constitutionality of the amendment and its effect, the popular notion, even within the Judiciary, is that there is Parliamentary Supremacy (as opposed to Constitutional Supremacy) in Malaysia.

Additionally, as I have previously written, the Prime Minister ultimately decides the appointment of judges (respect of the decisions of the Conference of Rulers could be argued as being a convention rather than a legal obligation). In this way, it could be said that the Executive controls the Judiciary and those who are appointed or promoted may, for one reason or the other, not necessarily be the most qualified or most capable. Seen from this perspective, there is in effect no check and balance. It could be said that the nation is in effect ruled by dictate or decree. Perhaps this is why the mainstream media is fixated on the views of the Prime Minister on almost everything and also why the wishes of the leadership elite is often seen as having force of law.

The foregoing is further complicated by a 'ketuanan melayu' policy articulated through an aggressive policy of affirmative action in favour of the majority Malay community and a close linkage between the Malay ethnicity and Islam. It is a truth that the civil service and the Judiciary is predominantly Malay who are, in turn, Muslim.

As more recent history has shown, this has allowed for a translation of the ambiguous statements of the leadership, particularly where Islam is concerned, into a belief on the part of administrators and bureaucrats that Islam, and as such its administrators, has a role to play in the governance of this country and has a more 'superior' role than other religions or faiths. This belief is given further foundation by the policy dictates that are seen to be conveyed by declarations that Malaysia is an Islamic State.

This has several implications. For one, it results in attempts to reinterpret law to make it more Islamic compliant. This is wrong in light of the understanding underlying the Fedeal Constitution. As has been judicially recognised, the founding fathers put in place a constitutional democracy in which public law was not meant to be predicated on any one religion.

Additionally, though it is often argued that Islam espouses universal values, in practice this is not necessarily the case. The practical Islam that we have been exposed to in Malaysia is one which is unforgiving and premised on punishment. The Islamic administration in this country seems more focused on form than substance.

Further, for administrative convenience and the ease of enforcement only selective versions of Islamic precepts determined to be acceptable are apermitted to become the basis of Muslim practice. In this way, we have seen a codification of a narrower swathe of Islam than the diversity of the religion itself contemplates. The Islamic law in this country is premised on the shafii madzhab or school (within the Sunni grouping) even though there is nothing objectionable about the other madzhabs. The Imams that founded these madzhabs were careful to ensure that their teachings did not become definitive. This appears to have been forgotten in our rush towards building, albeit on the quiet, an Islamic State.

In this context, a crucial question is who defines Islam for the purpose of reinterpretation of law and the development of an 'Islamic' policy. The monopoly over Islam potentially hurts Muslims as much as it does non-Muslims. The freedom of Muslims themselves to delve into God given diversity is in this way compromised.

The net effect is one where the Rule of Law is undermined resulting in the kind of controversies we have seen these last few years. No matter how you analyse and characterise these controversies, the painful truth is that injustices have been occasioned, more usually in the name of Islam.


Whither Unity

Secondly, labels are divisive. They exclude in as much as they include. One would have thought that as this nation turned 50 we would no longer be struggling with forging a national identity and that we would be striving as one nation.

Sadly, this is not the case and it is not difficult to see why. Continued emphasis on race and religion have led to alienation. They have also, riding on the back of the aggressive affirmative action campaign launched in 1969, created a context in which discrimination has become the norm in a way not countenanced by the Constitution. As I have said elsewhere, as long as article 153 of the Constitution remains in force I will recognise it as the law and for that reason accept the special status of Malaysa and the natives of Sabah and Sarawak. But the NEP and its successor policies has gone far beyond the contemplation of those who drafted article 153.

The extended campaign has also created a privilege rather than special right attitude amongst the Malay community (I am generalising). This attitude is fueled for political reason to an extent that many cannot see an inconsistency between the affirmative action policy and the universality required by Islam. The truth is that many non-Malay Muslims do not qualify for special privileges simply because they are not Malay.

In this murkiness, labels do have an impact. They fuel resentments, they entrench further the belief amongst that while all are equal, some are more equal than others. So, even if there is value in labels such as Islamic State, does this value outweigh the more pressing need to ensure that all of us feel like we have our rightful and equal place in this country? I think not.

MIS

Latifah Mat Zin: Reaffirming The Supremacy Of The Constitution

Last Wednesday, the Federal Court handed down its judgment in the case of Latifah Mat Zin. Though the impact of the judgment on ‘hard’ or controversial cases like those of Lina Joy, Subashini and Moorthy is yet to be fully understood, it is apparent that the judgment goes a long way in helping us unravel the legal knots that have resulted in the injustices that those cases, and cases like it, serve to illustrate. It also provides us an insight into where we stand as a society 50 years into the life of this nation.

In the interests of full disclosure, it should be known that I appeared as counsel for Latifah Mat Zin.

This posting aims to explore the impact of the Latifah Mat Zin decision on the legal positions that resulted in the majority decisions of the Federal Court and Court of Appeal respectively in Lina Joy and Subashini, and also the many High Court decisions that have resulted in litigants being turned away in deference to the syariah courts.

For a more complete understanding, it will be necessary to restate basic principles and re-explore old ground. I ask for your indulgence in the interests of clarity.


The Supremacy Of The Constitution: Is Malaysia An Islamic State?

For some years now, civil society activists have been warning of an undermining of the Rule of Law through efforts aimed at securing official recognition of the purported supremacy of syariah law and the syariah legal system in Malaysia. Though the aspiration for a greater role for syariah law in the public life of Malaysians has had a place in Malaysia for many years, a strong commitment on the part of the Judiciary and the Executive to the Federal Constitution and constitutionalism had helped keep the aspiration in check.

Grounded as it was on recognition of the supremacy of the Federal Constitution and the secular status of public law, this commitment ensured the perpetuation of the multi-racial, multi-religious and pluralist Malaysia that had been the vision of those who set us on our course for freedom and a free life. It was understood then, and remains a truth now, that undue emphasis on race and religion would have a destabilizing effect on the nation. It would also result in discriminatory attitudes and practices that would undermine the national vision of an integrated and unified society.

The fact that from the outset the balance struck between the competing interests was a delicate one was not reflective of a precariousness or a doubt as to the value of the this vision. Rather, it reflected the understanding and sensitivity of those charged with the responsibility of laying down a firm foundation for this country to two basic truths. Firstly, that each and every Malayan, later Malaysian, was entitled to live his or her dream to the fullest. Secondly, that in order to do this all Malaysians had to be guaranteed the freedoms that would allow for this and the necessary diversity.

It is for this reason that upon Malaya achieving independence, a Federal Constitution that put in place a secular system of public law was entrenched as the supreme law of the nation. By public law it is meant the legal framework that puts and hold in place the system of governance and the underlying paradigm. By constitutional supremacy, it is meant that every action of the state or law would have to be tested against the Federal Constitution to ensure compliance. If the act or law were unconstitutional it would have no legal effect.

The use of the word ‘secular’ by our founding fathers was never intended to suggest an anti-religious or an anti-Islamic state of governance. Rather, it was intended to assure Malayans, later Malaysians, that Islam would not be made the basis of law and governmental action despite it being the religion of the Federation. Put another way, it was intended to reassure all Malaysians that in administering the country the Government would be persuaded only by good sense and the universal values applicable to all Malaysians. The syariah was never intended to be the basic law or benchmark against which actions or laws were to be tested.

The Federal Constitution however envisages that laws would be enacted to fulfill the personal law requirements of Muslims. It manifestly recognizes that the syariah would not be made the basic or supreme law. The Federal Constitution declared, and still declares, itself as the Supreme Law. Unlike the Constitution of Pakistan that entrenches the syariah as the basis of all law, the Federal Constitution does not accord the syariah law such status. For this reason, it is wholly incorrect to refer to Malaysia as an Islamic State.

This state of affairs was recognized by the then Supreme Court in 1988 in the case of Che Omar Che Soh which characterized our public law sphere as secular. The Court also observed that unless the Federal Constitution was amended to reflect the syariah law as the supreme or basic law, this would be the case.

The Federal Constitution has not been amended to reflect that position. Article 4(1) still declares the Federal Constitution as the Supreme Law.

(Next, Part II: The Politicisation Of The Constitution)

MIS

Concern For Nathaniel Tan

I am concerned about the arrest and remand of Nathaniel Tan. Media reports suggest that he has been arrested in connection with an offence under section 8 of the Official Secrets Act, or the OSA. If this is true, then the Government must take immediate steps to ensure that Nathaniel Tan is immediately released.

For this, it would be useful for us to get a grasp of what the OSA, and in particular section 8, concerns.

As it was originally drafted, the OSA was a law aimed at allowing the Federal and State governments to take measures to ensure that highly sensitive information pertaining to matters of national security could be maintained confidential. The objective was to allow those charged with the security of the country to keep such information away from those who would use this information adversely.

For this reason, as it was originally drafted the OSA allowed for the classification of a very narrow class of documents pertaining to military installations, military prisons and other matters related to state security.

The OSA was amended in 1987 to expand the scope of information that amounted to an ‘official secret’. Since then information so defined include information in the following categories:

• Cabinet documents, records of decisions and deliberations including those of Cabinet committees;
• State Executive Council documents, records of decisions and deliberations including those of State Executive Council committees;
• Documents concerning national security, defence and international relations.
• any information and material relating to the 3 categories set out above and any other official document, information and material as may be classified as "Top Secret", "Secret", "Confidential" or "Restricted", as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed
  

The government may add to the first three categories by simply gazetting the variations. This allows for additions outside parliamentary scrutiny and process.

Section 8 of the OSA is one of the main sections of the Act. It sets out offences against the Act in the widest terms. It would be best to reproduce the relevant parts here:


8. Wrongful communication, etc. of official secret.

(1) If any person having in his possession or control any official secret which -
…
(c) has been made or obtained in contravention of this Act;
…
does any of the following -


(iii) retains in his possession or control any such thing as aforesaid when he has no right to retain it, or when it is contrary to his duty to retain it, or fails to comply with all lawful directions issued by lawful authority with regard to the return or disposal thereof; or

he shall be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.

(2) If any person receives any official secret or any secret official code word, countersign or password knowing or having reasonable ground to believe at the time when he receives it, that the official secret, code word, countersign or password is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the official secret, code word, countersign or password was contrary to his desire, be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years.


As one can see, the provision puts almost any activist involved in efforts to improve socio-political conditions in Malaysia in a ‘damned if you do, and damned if you don’t’ place.

The OSA is unconstitutional. In its current form, it violates a range of fundamental liberties guaranteed by the Federal Constitution. Chief amongst these is the freedom of expression, and the associated freedom of information. Seen from the perspective of allowing arbitrary government, the OSA violates the equal protection and equal access to the law guarantees as well as undermining the fair and free elections underpinnings of our system of government.

The OSA in its current form allows for a government to administer this country covertly and in defiance of the accountability and transparency that is crucial to democratic process. This impacts on all our lives in more ways that we can begin to understand as the government is given a means to thwart legitimate public interest by the forced suppression of material and relevant information. The position taken by the government in connection with the disclosure of toll concession agreements illustrates this worrying trend.

The OSA as it is also violates international human rights norms and runs counter to representations made by our government at the international level about the state of play in this country where civil and political rights are concerned. Malaysia is a current member of the United Nations Human Rights Council. It must act in a manner consistent with its membership.

These are not my views alone. The OSA has been widely condemned (see here for a comprehensive analysis of the Act by Human Rights Watch).

In view of the above, short of repealing the OSA or amending it to neturalise the contraventions of constitutional guarantees and international human rights norms, no charge or charges should be made out against any person under the OSA. Such an act would run counter to the promises of transparency and accountability of the current administration under Abdullah Badawi.

The move against Nathaniel Tan is particularly worrying in light of indications in the media that the investigations are being carried out in connection with concerns about matters published in blogs. In a previous posting, I had explained how vital blogging is to nation building efforts.

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