THE infamous video about a lawyer allegedly brokering judicial appointments draws our attention to the constitutional provisions dealing with the selection of our superior court judges.
In Malaysia, as in most legal systems, appointments are in the hands of the Executive.
However, given the crucial role of judges at the heart of the legal system, the Constitution seeks to ensure that only those with qualifications, temperament, integrity and calibre are elevated to the hallowed halls of the judiciary.
Sadly, many events of the last two decades indicate that the gilt-edged provisions of the Constitution are not working well.
The Constitution in Article 123 prescribes two formal rules of eligibility for appointment to the Federal Court, Court of Appeal and the High Courts.
Firstly, the nominee must be a citizen whether by operation of law, registration or naturalisation.
Secondly, he or she must possess the minimum professional experience of being for the 10 years preceding his appointment ? an advocate of (the) courts ? or a member of the judicial and legal service of the Federation or of the legal service of a State.
The words for the 10 years preceding his appointment are not entirely clear.
Two contentious issues have washed up on our judicial shores. One is whether the 10 years preceding must be immediately preceding, or whether 10 years of accumulated experience over a longer period of time would suffice.
A second contentious issue is whether the experience at the Bar must be in active legal practice with a practising certificate, or whether it is sufficient to be called to the Bar 10 years preceding the appointment?
This issue is engaging the Federal Court in the case of Prof Dr Badariah Sahamid, who was appointed a Judicial Commissioner on March 1.
The learned JC had been called to the Bar in 1987 but she chose to immerse herself in teaching and research.
She served with distinction at the Faculty of Law at UM as Dean and lecturer. She wrote law treatises. She was a member of the professional qualifying board overseeing the CLP programme.
It is arguable that once called to the Bar she is lawfully an advocate of those courts and, therefore, eligible for elevation to the Bench.
It speaks badly of a legal system and of the legal fraternity that there should be attempts to bar a distinguished academician from the Bench because she imparted lawyering skills at the Faculty but did not practise them in the courts.
Many lawyers do neither. They renew their certificates annually but rarely, if at all, appear in court. Does their non-appearance in court make them ineligible for a judicial appointment?
PROCEDURE FOR APPOINTMENT:
Around the world judicial appointments follow one or more of the following procedures:
·A Judicial Nominating Commission scrutinises the applications or nominations and recommends two or three best qualified candidates to the Executive.
·The Executive makes the formal appointment.
·There is a procedure for confirmation by the Senate (as in the US) or by some other confirming body.
In the US, State judges are elected by the people.
In Malaysia, Article 122B requires an extensive, multi-layered process of consultation between the Prime Minister, senior-most judges, the Yang di-Pertuan Agong and the Conference of Rulers.
When a vacancy arises, other than to the post of the Chief Justice of the Federal Court, the Prime Minister must take counsel with the Chief Justice: Article 122B(2).
In addition, the President of the Court of Appeal and the Chief Judges of the High Courts are consulted by the PM on appointments to their courts: Article 122B(4). For the appointment of the Chief Judge of the High Court in Sabah and Sarawak, the chief ministers of the states are also taken into confidence: Article 122B(3).
The Prime Minister then advises the Yang di-Pertuan Agong. His Majesty is required to act on advice but only after consulting the Conference of Rulers: Article 122B(1).
The Conferences role is one of check and balance. It has the power and duty to scrutinise, to call for further information, to delay, to caution and to warn. However, it does not have the power to veto the Governments proposals.
Consultation is not the same thing as consent. The PM has a duty to give due consideration to the multiplicity of views he may receive from the Conference, the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts and the chief ministers of Sabah and Sarawak.
No one consulted has the right to insist that his views must be obeyed. How much weight must be assigned to each view is a matter of constitutional convention and not of law.
The above extensive consultative procedures do not apply to the appointment of temporary or part-time Judicial Commissioners. Under Article 122AB, they are appointed for a specified period or a specified purpose by the King on the advice of the Prime Minister after consulting the Chief Justice.
Regrettably, direct appointments to the High Court have become rare and a stint as a JC is regarded as a probationary period for a full appointment afterwards. This practice undermines the rules about security of tenure in Article 125.
In the last two decades a negative mystique surrounds the selection process. Judicial posts seem to be open to brokering. The process is riven with politics and factionalism. Merit, integrity and independence appear less important than who you know and who you can please.
It has, therefore, been suggested that an impartial Judicial Nomination Commission be appointed to conduct merit evaluation and to recommend names to the Government.
The Commission should consist of the Chief Justice as chairman, the President of the Court of Appeal, the two Chief Judges of the High Courts, the President of the Bar Council, the Attorney-General and one past superior court judge appointed by the Majlis Raja-Raja.
In the US, 34 of the 50 states use some system of merit evaluation.
The selection process should permit aspiring candidates to apply. A more diversified judiciary should be created.
At present the majority of appointees tend to be from the Judicial and Legal Service and not from the Bar.
This imbalance needs to be corrected. Distinguished academicians must also be considered for appointment as Judicial Commissioners or Associate Justices to handle specialised cases.
For purposes of promotion, a Performance Evaluation Programme should be implemented to enable government and private lawyers to evaluate holders of judicial office on the indices of integrity; knowledge and understanding of the law; ability to communicate; preparation, attentiveness and control over proceedings; skills as a manager of pending matters; and punctuality.
Restoring judicial independence and rewarding integrity and ability are urgent tasks.
The Government must remember that if respect for judges and the judicial process is gone and there is no one left to resolve divisive issues, that could rip the social fabric apart.
The judiciary is a safety valve without which no democratic society can thrive.
n Dr Shad Faruqi is Professor of Law at Universiti Teknologi MARA.
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