Friday, August 10, 2007

Has government been incorrect in selecting candidate for judge's position?

Just a couple of days ago malaysiakini carried the news of the Conference of Rulers rejecting the government’s choice for the position of chief judge of Malaya. By judiciary protocol, the chief judge is ranked No 3.

Actually malaysiakini obtained the news from the Singapore’s Straits Times. The latter reported that last month the Conference of Rulers had asked PM AAB to reconsider the government’s candidate for the No 3 judiciary spot.

‘Reconsider’ is of course polite language for saying FO to the government’s choice.

malaysiakini said it’s rare for the Conference of Rulers to reject the PM’s choice, and may kaytee add, especially more so on such a difficult judicial matter. Other than the legal fraternity and opposition politicians and perhaps some NGOs, most people wouldn't have the faintest as to who is what and how is whom.

Incidentally, the Singapore Straits Times also reported that AAB was believed to have met the Perak’s Sultan Azlan Shah, one of the senior members of rulers conference. In case we have forgotten, the Sultan was Lord President in the 80's. A trivia - when he was judge, he presided over a case involving a Crown Prince of a certain state, who subsequently became a Sultan too. It was then rumoured no other judge had the guts to take on that case.

Maybe the Sultan and AAB met to discuss hockey only? The Sultan is a keen hockey lover and one of the 3 lifetime presidents (or some other high title) of the International Hockey federation, an extremely rare honour.

But Jeff Ooi of the DAP posted on his olde Screenshots a query on a post titled A serious joke?

Jeff commented: “I wonder Parliamentary Democracy [is] still relevant and [in] existent in Malaysia? Is there a separation of power where the three pillars of parliamentary democracy, namely the Legislative, Executive and Judiciary, are to operate independent of each other?

By allowing the PM, who is the head of the Executive, to nominate a member of the Bench as the third highest position in the Judiciary, will the nominated Judiciary officer be made beholden and subservient to the Executive?”

Well, I am not a law exert by any means, in fact far from it, but I seem to recall someone once telling me that in both the Commonwealth and USA, the appointment of a judge is the prerogative of the Executive. This approach has been inherited from the British.

As Judge Michael Kirby of Australia, (an open gay but) one of the most respected and admired judge stated: “Appointment to the Bench was in the gift of the elected Executive Government of the day. A principal political officer would make the eventual proposal (in England the Lord Chancellor; in Australia usually the Attorney-General). The decision to appoint or not, or to select amongst candidates, would be made by the Cabinet of politicians, usually in the midst of other pressing political business. Once the new appointee was chosen, his or her name would go forward to the Queen, the President or a Vice-Regal representative for formal confirmation. That was it.”

In some Commonwealth countries, which haven’t brought Mother England’s judicial system wholesale, they introduced a Judicial Service Commission which sees the involvement of “representatives of the legal profession and of the judiciary to temper the judicial appointments of the politicians.” [quote also from Judge Michael Kirby]

I ask the following at the risk of being condemned as a pro government supporter or worse, a cybertrooper ;-)

But, where is it that the government’s recommendation has been procedurally incorrect? How has this government recommendation been not in accordance with known Commonwealth practice in judicial appintments? Maybe Jeff Ooi may care to elaborate.

In fact, Western countries like Australia and the USA used every opportunity to put judges known to have either conservative or liberal leanings. The opportunity would only present itself when judges retire during a particular government’s rule. So, if a judge retires during Bush or John Howard’s government, then the appointment may be expected to be a candidate with conservative views, and vice versa.

This is accepted by both sides of the political fence. And there would be the usual pro and con comments from the media, law fraternity, etc, but that's democracy.

The problem with our Malaysian government is that it is so distrusted that its selections of candidates have been and are always viewed as dodgy - even correct procedures are deemed as suspicious. But let us not get carried away by our own bias and indulge in off track arguments.


  1. Hi KT,
    You must learn to differentiate between the spirit of the appointment process, and not just the letter.

    The BIG difference between Malaysia and the other Commonwealth countries respected for the independence of their judiciary

    a) None of the others have a recent history of having fired not one but THREE Supreme Court judges, and suspended two others.
    b) None of the others have a record of a Chief Jusice going on holiday with the lawyer of a case he was trying
    c) The others have a long tradition of appointing Senior Judges from those considered by their peers as best qualified for the position.
    So you don't here of similar grumblings from the Australian or British Bar for example.

  2. I believe in the case of US of A the President nominate a replacement supreme court judge, upon the death of a current one.

    The following link gives more -

    It seems that not necessary the president nominee goes through to become supreme court judge. There are cases that the nominees were rejected.

    So there is check & balance, to separate the 3 tiers of demoncracy.

  3. kk46, if you look at the 1st sentence of my last para, you would find that I do not disagree with you about our distrust of the UMNO-led government.

    But that was not what I ask or commented upon. I queried Jeff Ooi's comment, namely "By allowing the PM, who is the head of the Executive, to nominate a member of the Bench as the third highest position in the Judiciary, will the nominated Judiciary officer be made beholden and subservient to the Executive?"

    Essentially Jeff has shifted the goalpost. If that is his concern, understandably born out of a general mistrust of the current government, then he should take it upon himself, when he gets elected to parliament, to propose a bill to change the current process.

    But the current process of the Executive proposing a candidate to the Rulers is not incorrect nor unique to Malaysia.

    We also need to be careful with politicians making grandstanding statements that has the potential to throw the baby out with the bathwater.

    ;-) BTW, I am a supporter of Jeff in many respects since his days as only a blogger (affiliated to the Gerakan no doubt but still a non-politician blogger) but it doesn't mean I am going to act blindly in support of him like what the acolytes of a certain party do for their leader.

    Where I perceive Jeff to be incorrect I deem it only correct/fair (to him as well) that I point it out.

  4. Ummm...yes,
    Article 122b of the Constitution clearly states the Agong acts on the advice of the PM , after consulting the conference of rulers.
    It looks like the PM did NOT consult the conference of rulers. There's also a lot of buzz in the legal fraternity that the candidate look too much like a "Parachute" candidate, leapfrogging over many other judges. Given the pass history of the Excutive's treatment of the judiciary, its Extremely suspicious.

    Eh, by the way, I forgot to wish you a speedy recovery.

    Got involved in an accident ?

  5. Tun Ahmad Fairuz has actually come out and said that the Prime Minister has the final say in the appointment, to quote theStar.

    122(b) puts the power of appointment in the hands of the Yang di-Pertuan Agong, not the PM. So logically, Tun Ahmad can only mean that the PM has the final say on the choice of candidate and NOT the appointment of said candidate, on pain of contradicting the constitution.

    I'm in agreement here: Jeff may be jumping the gun, but whether his fears are confirmed or not rests, in my opinion, on what Tun Ahmad actually means by saying that the PM "has the final say in the appointment.." Tun Ahmad Fairuz, I maintain, is equivocating on the term "appointment". It's fallacious.

    As for procedure and form, I think it's usual practice for the sovereign to approve appointments without much cause, so heh heh.. the real significance is the rejection of the candidate.

    It's a warning, a shot across the bows.

    Furthermore, if I may speculate (and this is just speculation): I'm willing to bet that the rulers are trying to test the powers conferred by the constitution. If the PM and Tun Ahmad Fairuz affirm the letter of the constitution, I hardly think they can protest (inconsistently) if, say, the Yang di-Pertuan Agong refuses to appoint a Prime Minister..

  6. But in India, judges are appointed by judges alone. But even this does not go down well with some.