CJ Fairuz’s poor taste in equating Judicial Appointments Commission to “nudity”

The response of Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim likening proposal for an independent judicial commission on appointment and promotion of judges as akin to nudity rather than transparency is ill-advised, in poor taste and reflect badly on the office of Chief Justice.

Ahmad Fairuz may be unhappy with the proposal of an independent judicial commission to oversee the selection and promotion of judges, but he should realize that this proposal pre-dates his appointment to the top judicial post in the land and meant to enhance public confidence in the system of justice and in that context, there is nothing personal against any personal holder of the office.

Ahmad Fairuz should not have questioned the motives of those who had made the proposal, such as the Bar Council and several prominent lawyers, posing the rhetorical question:

“Are we to allow whoever has cases in court and who lost to decide on the fate of judges?”

He ignores the support of retired judges for the proposal.

While claiming to welcome any memorandum on the proposed independent judicial commission, Ahmad Fairuz made clear his opposition when he told the New Straits Times in Kota Baru after chairing a meeting with Kelantan judges yesterday:

“I started (as the Chief Justice) in 2003 with accountability and integrity. We have been transparent.

“But transparency should have its limits. Don’t tell me when we are transparent, we have to be nude. That is not transparency, that’s nudity.

“You want everything to be absolute? There is no such thing as absolute freedom or absolute transparency.

“That’s the way I look at things.”

In the first place, it is absolutely wrong and inapt to categorise the proposal of an independent Judicial Commission as an exercise in nudity rather than transparency, especially when this judicial reform had been adopted by other countries such as Canada, New Zealand, South Africa and the United Kingdom.

Secondly, the proposal for a Judicial Appointments Commission was not made only during Fairuz’s tenure as Chief Justice.

I for one had been calling for a new system of judicial appointments to ensure transparency, top-quality judges and a world-class justice system since the nineties — ever since the country was plunged into a series of crises of confidence in the independence, impartiality and integrity of the system of justice lasting for over one-and-a-half decade since the 1988 arbitrary sacking of Tun Salleh Abas as Lord President and two Supreme Court Judges, Tan Sri Wan Suleiman Datuk George Seah.

My arguments for judicial reforms especially in the system of appointments are as valid today as when I made them since the nineties, viz:

1. That Malaysia needs a more transparent process of judicial appointments to ensure that the justice administered by the judges will be of superior quality because they are professionally qualified persons of integrity and good character, independent and courageous; and

2. The continuing flaws of the present system of judicial appointment, which depend on the decisions by two persons, the Prime Minister and the Chief Justice, include:

  • Selection and appointment procedure not transparent;
  • Consultative process is selective;
  • There is lack of appraisal of the candidates against pre-determined criteria.

When the United Kingdom introduced a new system of judicial appointments which is open to public scrutiny in recognition that the confidence of both the public and the legal profession in an independent judiciary is of the first importance, nobody least of all the UK judges objected to the indignity of being subjected to an exercise in “nudity”.

Apart from the statutory qualifications for judicial office, two fundamental principles underpin the new UK system of selecting candidates for judicial appointment, viz:

  • Appointment is strictly on merit.
  • Significant weight is attached to the independent views of members of the professional community (judges and members of the legal profession) as to suitability for appointment.

Chief Justice Fairuz should demonstrate he is reform-minded and not just supporter of reform in rhetoric by leading judicial reforms with a new judicial appointment process which is more transparent and is open to public scrutiny to restore the confidence of both the public and the legal profession in an independent judiciary.

  1. #1 by lauwengsan on Thursday, 22 February 2007 - 4:19 pm

    Malaysia is heavily affected by such denial syndrome and reform will not take place until there is a political will from the current administration to launch various reform agenda which are long overdue.

    If the government wouldn’t want to change or start reforming, perhaps it’s the time for the people to consider changing the government.

  2. #2 by Libra2 on Thursday, 22 February 2007 - 6:12 pm

    When the chief justice reacts to an innocuous proposal like this, it is all the more reason why we need an independent judicial commission.
    This outburst is irresponsible and uncalled for.
    Now can we question his motive in objecting to this commission?
    If Canada, New Zealand, South Africa and the United Kingdom can have it why can we?
    Is the Malaysian Chief Justice integrity far superior to those from these countries?

  3. #3 by ahkok1982 on Thursday, 22 February 2007 - 6:21 pm

    This is a chicken n egg matter. which comes first? A clean gov who will approve e appointments commission thus restoring e judicial integrity; or a fair judicial system who will prosecute corrupt gov officials to create a clean n transparent gov.
    somehow, i dont really see any chickens or eggs. juz a load of crap.

  4. #4 by Bigjoe on Thursday, 22 February 2007 - 8:10 pm

    An independent judicial commision? For now, if this CJ could speed up the cases, I would have some respect for him. As is, if an independent judicial commission would paralyze our judicial system given the vast incompetence and inefficiency.

    Above everything else, the CJ position is a political appointment not a judicial merit one..

  5. #5 by DoingTheRightThing on Thursday, 22 February 2007 - 8:40 pm

    Another half-past six CJ in our justice system. Reformation within judiaciary has long way to go. With this type of mindset, the justice system may not recover from its assault in 1988.

    Who knows, its will take another 50 or 100 years!

    Poor Malaysians, we have such as CJ.

  6. #6 by WFH on Thursday, 22 February 2007 - 9:18 pm

    A CJ with such a mindset to completely put the subject matter of an independant judicial commission out of context, to equate “transparency” to “NUDITY”?? Why does not he equate transparency to openness, instead of nudity, of all things?
    Is it just coincidental that he made the statement:-
    1).. amidst the current backlash on proposals of “chastity belts” for women?
    2).. in Kota Baru, where issues of gender segregation is a State ruling?
    3).. in NST, a government organ?
    4).. next to Terengganu state where Mat Skoding, morality policing, vigilantism and spying on “immoral behaviour” between unmarried males and females, is a brand new policy?

    According to the NST report, he was further quoted thus:-
    “Judges are not popular. Fifty per cent of people who lost their cases before a judge will not have anything good to say about him.”

    If, say, winners:losess is 50:50, and out of the 50% losers, he implies 50% of them can have something GOOD to say about the judge. So, if we add the 50% case winners (obviously with something good to say about the judge) plus the 25% (50% of the 50% losers still saying good about the judge) adding to 75% having something good to say about a judge – yet to him, that’s NOT popular? Unless his base assumption is that winners:losers is not 50:50 as I estimated, eg 10:90, then THAT ratio will substantially affect the percentage of dissatisfied people against a judge, supporting what he said. So, can I conclude the outcome rates of court matters (based on his statement that judges are NOT popular on the strength of only 50% of losers saying good about a judge PLUS the winners) are heavily skewed against WINNING cases in court? But then my simple mind says someone must win, and conversely another must lose, so 50:50 should be a correct ratio. No?

    What sense of fairness and balance can now be expected from this Tun Ahmad Fairuz, no less the Chief Justice of Malaysia?

    Really, with his statement, out the door goes any hope of much needed reform in the Judiciary and judicial services, to restore the battered Judiciary back to its pre-1988 position. Or is it, if solely on quality of intellect, the CJ himself is afraid that an Independant Judicial Commission could adversely affect his own appointment and standing?

  7. #7 by undergrad2 on Thursday, 22 February 2007 - 9:20 pm

    There is no doubt that in a modern democracy, the process of making judicial appointments should be reasonably transparent, independent of the government and government intervention and not be left to politicians and political patronage – but rather to an independent commission composed of the Attorney General, Lord President, Chief Justice and should include President of the Bar Council and lay members.

    The criteria used should not be a secret and must be based on merit.

    The use of independent nominating commissions is not a novel idea as it is followed by many countries.

    As to the use of the word ‘nudity’ the CJ should know better. Comments like

    “But transparency should have its limits. Don’t tell me when we are transparent, we have to be nude. That is not transparency, that’s nudity.”

    would also attract protests from the progressive left who see nothing wrong with ‘nudity’.

  8. #8 by undergrad2 on Thursday, 22 February 2007 - 9:22 pm

    …In the States, his statement would no doubt provide material for late night show hosts like Jay Leno.

  9. #9 by undergrad2 on Thursday, 22 February 2007 - 10:08 pm

    On a more serious note, if you consider the fact that the ratio of judges per million citizens is only 2+ instead of 10+ in the case of India, and 50+ for Australia and U.K. and the fact that there are some 13,000 prisoners languishing in her jails waiting for trial, the issue of transparency takes a back seat to the issue of their appointment.

  10. #10 by malaysiaboleh on Friday, 23 February 2007 - 12:29 am

    Such is the norm of the current administration with “semi transparent” being the key words here. Judges having the one of the highest judicial authority to pass sentencing on any member of the society must be accountable to the society which he serves as well.

  11. #11 by ENDANGERED HORNBILL on Friday, 23 February 2007 - 3:49 am

    I am flabbergasted and completely bowled over by the ill-conceived remarks and inarticulate choice of phrases by a supposed ’eminent’ jurist and the nation’s top judge. The fault does not lie in those extra-judicial expressions; the fault, my Lord Fairuz, is that the remarks had a keen judgmental edge when the ‘hearing’ hadn’t even begun.

    Firstly, CJ Fairuz’s remarks appear premature and disproportionately colored by preconceived prejudices. By his own admission (verbatim from NST press report), he wanted to reserve comments till he has full details. Quote:’I will not comment until something is sent to me….We want to know all the details, such as who should be members of the commission. Only then can we give our views on the matter..” He further added that “he had yet to see the proposal in writing and only knew about it from newspaper reports.”

    Without the benefit of the Memorandum or discussions with the proposers, this CJ had rather impetuously fired the first volley and “questioned the motives of those who had made the proposal, such as the Bar Council and several prominent lawyers.” This is evidently contrary to the training, discipline and force of habit, which constitution proudly distinguishes judges from ordinary men. Judges do not put the cart before the horse! Prejudices, however primordial or pre-existing must necessarily remain sub-silentio or subjugated till opposing views have been expressed and tested.

    Secondly, by dint of persuasive influence, CJ FAiruz cannot claim to be ignorant of the wave of judicial reform that has overtaken some other jurisdictions including the UK from which we have drawn preponderantly much of the elements of the Westminster model. Reform on Judicial Appointments have been ongoing in UK from as early as 1995 (JUdicial Appointments Procedures – Third Report, HC 52-I , 1995-1996). The Independent Judicial Appointments Commission had taken up much of the Lord Chancellor’s time from 1997 and so many Reports and Consultation Papers till its successful implementation in 2006, spanning 10 long years before the fruition of judicial labours on just this thorny but necessary issue of Judicial Appointments. Surely, my Lord Fairuz, must have taken judicial notice of its successful implementation in more advanced, established and sophisticated jurisdictions.
    This is not to suggest that what is good for the goose is good for the gander…but there are persuasive reasons for an Independent Judicial Commission that merits consideration from the highest members of our judiciary.

    Thirdly, the weaknesses of some of the members of our judiciary have been acknowledged by our judges themselves, both past and present, namely, in areas such as the integrity, the calibre, the language skills, the standard of written judgments and the rigors of judicial thinking. As for quality, 80% of the senior judiciary in UK obtained their first degree from Oxford or Cambridge (See ‘Michael Zander – The Law-Making Process’ 2004, page 338). I remember reading somewhere that many of those hold first class honours. The malaysian public has a right to know whether our selection is politically motivated or driven by the search for first-class legal minds. If I need a heart operation I see a cardiac surgeon and not a cardiologist though both know about the heart; when I appear before the court, I want to appear before a judge who knows the law and the applications of the law and not one who messes around with the law and adjudicate on prejudices and surmises.

    Much more can be written on the subject if not for time constraints. But surely, my Lord Fairuz must be the first to agree that judges do not carry a halo of judicial infallibility with them. When in the views of a growing segment of informed legal experts that reform and progress in the legal system is long overdue it would be helpful if the top judges give due thought and adopt a robustness and progressiveness that could bring the judicial system up to speed.

    Let us be progressive and robust for the good of this nation’s judicial system. Allow me to conclude by lifting the words of Lord Ward LJ in Fitzpatrick v Sterling Housing Asociation Ltd [1997] 4 All ER 991 :’To conclude otherwise would be to stand like King Canute, ordering the tide to recede when the tide…rolls relentlessly forward and shows no sign of ebbing. If I am to be criticised – and of course I will be – then I prefer to be criticised, on an issue like this, for being ahead of the times, rather than behind the times. My hope …. is that I am in step with the times.”

  12. #12 by sotong on Friday, 23 February 2007 - 10:55 am

    Now there is an absolute…….an absolutely arrogant CJ!

  13. #13 by Educator on Friday, 23 February 2007 - 11:55 am

    YB Lim, if what you propose can comes true, the cows would have come home.
    Seriously, how many of the judges would have been appointed if there were transparency and without political interference?

  14. #14 by ENDANGERED HORNBILL on Friday, 23 February 2007 - 2:12 pm

    BTW, few would challenge the fact that the distinctive characteristic of common law judges is their common sense.

    You either have it or you don’t. But a good judge would need to have an uncommon quality of such common sense and more than a mere modicum to grace the position.

    “sotong Says:

    February 23rd, 2007 at 10:55 am
    Now there is an absolute…….an absolutely arrogant CJ!”

    And there is no place for arrogance. Being a judge does not make you a demi-god nor give one a monopoly of judicious wisdom! Those who behave arrogantly within or outside the courts incur the bated curses of barristers and clothe themselves with the ’emperor’s new clothes’.

  15. #15 by sotong on Friday, 23 February 2007 - 2:48 pm

    With power, some people become disrespectful to the ordinary people and forgot why they were placed in that position in the first place.

  16. #16 by Bigjoe on Saturday, 24 February 2007 - 8:59 am

    It occur to me, other than the fact the CJ is intellectually challenged, that part of it is because our justice system is now over politically correct already. In a real system, the judicial system should be independent. The independence allow the justices to indulge in disciplined intellectual debate. While political influence is inevitable, at the core, the justice system must retain a high degree of independence to be fundamentally sound. The CJ remark clearly comes from an subconscious understanding that the pressures of politics is very close and hence he reached for an emotionally ill-conceived answer that reveals his subconscious mind.

    The crudeness reflects the crudeness of our politics and the members that follow it.

    So basically it comes down to the crap of a justice system that Dr. M left behind for us.

  17. #17 by liu on Saturday, 24 February 2007 - 2:06 pm

    His Lordship Vincent Ng J in Indah Desa Saujana Corp Sdn Bhd v James Foong Chen Yuen & Anor , inter alia, said:

    ….while it is trite law that a judge is not an employee of the Government to make the latter liable for the judge’s conduct, it is all the more imperative that a mechanism should be put in place to ensure objective and proper evaluation of a candidate proposed for judicial appointment so as to ensure that judges of the right calibre, competency, moral fibre and with a good grasp of the law (besides having a good command of the English language – if we are to remain relevant in a globalised world) are appointed and this would also obviate the embarrassment of having to experience any display of bizarre court judgments which go berserk on the law or conscience.

    I am concerned. The very fact that a fanciful case of this nature saw the light of day is indeed perturbing. What has become of us? Has the Malaysian society metamorphosed into a violent, cynical society with scarce respect for the law and less respect for judges, to the extent that even a judge – as in the present case – who had merely carried out his administrative function within the powers conferred upon him as head of his division has been treated with grave suspicion and accused of corruption; and is sued for well over RM24 million? Have we, as judges, contributed to this state of affairs? Before we gripe about what has become of our society, we ourselves must not only show but also demonstrate our appreciation to the large number of good judges in our midst. It could be said, quite plausibly, that the best way to destroy a nation and its society is to first destroy the judicial institution – a soft target, least capable of self preservation – and public perception of its credibility. Admittedly, the only way it could preserve itself is to ensure that only the very best in every sense of the word (as happened in the past) receive the call to serve; for otherwise even the good souls among them would cease to serve.

    If judges are not of the right moral fibre or do not have the courage to do what is right and conscionable and with vigour they would merely be parroting printed words when taking their oath of office. For the sake of this land of our birth we must be prepared to bear the burden of carrying out our honoured duty, uncowed and unbowed, come what may upon ourselves – or rather, what may not come. To many the concept of justice is difficult to define even with carefully crafted words, but it simply means a judge’s abiding desire to render to every citizen his due through the due process of the law; without fear or favour, with genuinely good conscience and fealty to the law, and without any thought of self-aggrandisement, which, even if acquired, could save neither his name nor his soul. Least of all should a judge’s conduct give any impression that he does not intend to reach the right decision. It does not matter how the courts of law are housed or what appellations are ascribed to such houses. No doubt, people with courage and character, especially if armed with a mighty pen, always seem sinister to the rest, but if the Nation cannot, through its judges, help the many who demand justice it cannot save the few who take more than their just deserts. Perhaps we should spend some time in quiet mulling of the following aphorism, which could be expressed in a somewhat sizzling and potent prose in the Malay language, thus:-

    Pendek kata, tak kan kau tak sayang nama kau.
    Tak kan harta pusaka kau tak ambil kira nama kau.


  18. #18 by Jeffrey on Saturday, 24 February 2007 - 5:24 pm

    I agree that Chief Justice’s likening of proposal for independent judicial commission (“IJC”) to “nudity” is ill-advised.

    ‘Nudity’ is an expression associated with sense of shame whilst ‘transparency’ with pride of openness of there being nothing shameful to hide. Therefore to compare the proposal for ICJ with nudity is to indirectly invite speculation that there may be something shameful in the present system for judicial appointments that ironically justifies rather than derogates the need for such a body!

    Secondly, in admitting that “he had yet to see the proposal in writing and only knew about it from newspaper reports”, the CJ is also ill-advised to speak against it publicly without the benefit of canvassing and deliberating on the pros and cons of it. Some quarters may take this (mistakenly as it may well be or otherwise) as a sign that he has an unconscious bias against reform by the mere mention of it, regardless that it may be for the better.

    Thirdly, it is also not correct to attribute those favouring or lobbying for the IJC to disgruntled lawyers who lost their cases in court and now desirous to decide on the fate of judges.

    Well, the Malaysian Bar firmly agrees with the IJC proposal saying that it is the general opinion of retired judges and the legal fraternity.

    Retired Judge George Seah first mooted this idea. In fact he went as far as to suggest “the Prime Minister must not be involved, directly or indirectly (through his appointees), in these judicial appointments. Seah said that ideally the chairman of the IJC should be independent and impartial like the leader of the Opposition with chairman of Bar Council as his deputy. Such a proposal was also recently seconded by Datuk K C Vohrah, a retired judge, and one of the most respected judges Malaysia has had. We need a new system so that appointments are based on one’s integrity, expertise, competence and productivity. Appointments should not be based on subjective, vacillating views,” Vohrah said. Suhakam also supports the proposal which is one of its sixty recommendations made to the government.

    Minister in PM’s Dept. Nazri said there was “nothing wrong” with the current procedure for appointing judges.

    Well, the current procedure has been going on for more than 20 years. If there were nothing wrong with it, how come the country faced the rare and unenviable distinction in the following “firsts” related to the judiciary institution: –

    · the 1988 Judicial Crisis leading to sacking/replacement of the Lord President Tun Salleh Abbas by Tun Hamid Omar and the removal of 5 other Supreme Court judges?

    · the forced resignation by High Court Judge Datuk Syed Ahmad Idid for his whistle-blowing on alleged corruption in the judiciary by anonymous letter?

    · Chief Justice Eusoffe Chin holidaying with a well known lawyer in New Zealand being posted on the Internet?

    Nazri also said, “The idea would be considered if the proposal came from serving judges,” he said, adding that Vohrah should have proposed such a commission when he was still on the Bench.

    With respect, retired judges are entitled to be heard because they have the wealth of experience and perspectives and now that they are retired, they are in vantage point to speak their minds with no axe to grind (except for what is good for the country), free from political pressures and impropriety of taking a stand on a matter which their bosses the Prime Minister and the Chief Justice may likely be diametrically opposed against.
    If they were still serving judges, it would be “ill-advised” to be embroiled in public controversy and debate – as would invariably be the case had they taken a stand in support of the IJC against its detractors – something which the CJ seems to have gotten himself into, when taken to task by the Leader of the Opposition.

    In fact this is an unnecessary comment from the CJ for 2 reasons:-

    First, he cannot, in his position, be seen arguing against transparency of judicial appointments via an institution like IJC. HRH Sultan Azlan Shah (former Lord President) in his Royal Highness speech at the opening of the Sultan Azlan Sghah Multaqa and Seminar “Independence in the Islamic and Non Islamic Judicial System” made a clear statement that “the law wouldn’t be effective in dispensing justice unless its implementation mechanisms were based on procedures that were fair and transparent, and administered by judges who were qualified, independent and of high integrity”.

    Secondly, the present system of judicial appointments which is based on the King making as a formality the appointment on the advice of the Prime Minister conferring with the senior judge(s) is one prescribed by the Federal Constitution. This means that for the IJC to be instituted, the Federal Constitution has to be amended by 2/3 parliamentary majority – an issue rightly belonging to the political realm which our CJ should do well to stay above the fray instead of entering arena and taking or appearing or seen to take sides with his “nudity” argument!

    It is perhaps timely now to let the great English Judge Lord (Alfred) Denning have the last word:

    “It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

  19. #19 by WFH on Saturday, 24 February 2007 - 8:52 pm

    The last 2 comments, liu’s and Jeffrey’s (as usual, :)), quoting from distinguished judges, very nice, impressive. Good ones.

  20. #20 by DarkHorse on Sunday, 25 February 2007 - 10:16 am

    “We need a new system so that appointments are based on one’s integrity, expertise, competence and productivity.” as per jeffrey

    Yes, but there’s a slight problem here. We may have to import these judges from overseas.

  21. #21 by DarkHorse on Sunday, 25 February 2007 - 10:22 am

    “Nudity’ is an expression associated with sense of shame whilst ‘transparency’ with pride of openness of there being nothing shameful to hide.”

    I beg to differ. I am proud of my nudity. I have nothing to be ashamed of. I have everything in the right proportions – I think.

  22. #22 by undergrad2 on Monday, 26 February 2007 - 12:39 am

    In the court hearing in Florida to decide what to do with Anna Nicole Smith’s body, Judge Seidlin was heavily criticised in the way he conducted the hearing. The print media has been vicious in its criticism of this Judge. He has earned nick names such as the “Weepy Wacko” and “Blubbering Seidlin” etc.

    Will Malaysia ever see the light of day when ordinary people are able to criticize the Judge, his ruling etc.

    The CJ’s public statements and the criticism that followed is a good sign.

  23. #23 by DarkHorse on Monday, 26 February 2007 - 4:36 am

    “You want everything to be absolute? There is no such thing as absolute freedom or absolute transparency.

    “That’s the way I look at things,” CJ said.

    Yes. That’s the way we look at things too. Why are you having an argument with yourself.

  24. #24 by DarkHorse on Monday, 26 February 2007 - 4:44 am

    “Chief Justice Eusoffe Chin holidaying with a well known lawyer in New Zealand being posted on the Internet?” as per Jeffrey

    Members of the Bench should carry themselves properly. They must not be seen to be too friendly with lawyers. But having been caught in the company of a lawyer holidaying overseas away from public view, he should recuse himself from ‘the case’. Justice must not only be done but be seen to be done.

    The appearance of justice is sometime more important.

  25. #25 by shortie kiasu on Saturday, 3 March 2007 - 11:24 pm

    We all as concerned and responsible citizens in the country support the “Proposal for an independent judicial commission on appointment and promotion of judges”

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