“It is most presumptuous for the judges at the Judicial Roundtable Forum to assume that only members of the judiciary are most qualified to decide on the question, excluding other equally if not more important stakeholders such as lawyers and laypersons of the civil society” – YB Kit.

As I understand it, the study looking at the judicial systems used in 40 countries in the Asia Pacific region is conducted by members of the Asia Pacific Judicial Roundtable Forum (“APJRF”) and the best system would be recommended to all countries of this forum.

Chief Justice Tun Ahmad Fairuz said whether by way of judicial commission, appointment by Parliament or by the head of the government, the best system would be recommended to all countries of the forum. “We will study each country’s system and decide which is the best to use. “If there is none, the forum can formulate one and recommend it,” he said.

Actually I don’t have a problem with this proposal. It is not as if it is Malaysia only making the proposal.

There are three considerations to bear in mind.

First, the “independence” of APJRF members conducting the study and making the proposal – who are the members of APJRF ?

They are 59 delegates – chief justices and legal officers – from 20 countries including Canada, Japan, Macao, Bangladesh, Indonesia, Singapore, Brunei, New Zealand, Maldives, Australia, East Timor, China, Hong Kong, Kazakhstan, Tonga, India, Fiji, Lao, Vietnam.

Second, it does not mean that whatever system of appointment recommended by APJRF will definitely preclude input from other stakeholders. If, for example only, APJRF’s members recommend the Philippines system, then “a judicial council and the Bar Council are involved in the appointments. Both parties would nominate several judges, depending on the number of vacancies, and the country’s president decides” as clarified by Ahmad Fairuz.

Third : relating to the issue of what is, concept wise, the best structure and institution for independent judicial appointments of quality, I think the best parties to conceive that structure are probably the judicial experts from more than 20 countries drawing on their different experiences from different jurisdictions. There is a wealth of judicial experience here drawn from all kinds of law, English common law, Dutch, native etc.

“…//…In fact, it is a very pertinent question whether judges are the most suitable and capable persons to solely decide on the question of the independence of the judiciary, which affect not only judges but the larger societies which they serve…//…YB Kit”.

Well certainly Judges’ input is invaluable and should be first but not exclusively considered.

Judges from different countries ought to know the kinds of problems and pressures judges face better than the other so called stakeholders like Civil societies, Bar Council, Opposition parties or other opinion leaders etc whose members don’t administer courts or judges!

I mean it wouldn’t be fair – or wise – for just about everyone else (other than judges) to give an opinion on how judges ought to be appointed to ensure independence and merit without those affected – the judges themselves – being consulted.

After all it is not too late – after APJRF has recommended a structure for judicial appointment to be adopted, and assuming Malaysia accepts that structure in principle – for the input of our local stakeholders comprising our Bar Council, Civil Societies and Opposition parties, familiar with local conditions, to be canvassed for refinement of that structure to suit local conditions.

At the origination and conception stage of such a structure, I would think the input drawn from the judges and legal experts of so many countries is invaluable and necessary.

Article 11 that says every ‘person has a right to profess and practise his religion’.

Every person here means every person, whether muslim or non muslim.

Malaysiakini reports on majority courts reasoning :-

“…….//……..While, the Federal Court acknowledges that there are no express provisions that syariah courts can decide on the issue of apostasy, however, if non-Muslims are converting into Islam, they have to go through the syariah courts. Therefore based on the concept necessary implication, if one chooses to exit Islam, (one) must go through the same authorities. I see no flaws in that logic….//….”

Crux of the issue: Is there flaw in that logic?

Lets make three assumptions here, which I think are reasonable:

1. syariah courts will uphold the faith and more likely partial towards those who enter it against those who exit it;

2. article 11 of constitution upholds freedom of religion which means it holds a person’s right to enter a faith (conversion) in equal importance as his right to leave the faith (apostasy); and

3. all malays are muslims by birth, not so for non malays.

Upon these assumptions, lets examine the argument map of the court here. In a nutshell, the argument may be reduced thus:

(a) syariah courts determine non-Muslims’ conversion into Islam (entry into the faith);

(b) therefore arising from (a), syariah courts will also determine Muslim’s conversion out of Islam (exit out of the faith – apostasy).

The (a) implies (b) argument ignores the essential difference in positions of a non muslim voluntarily exercising his right to enter into the faith by conversion and that of a malay like Lina Joy whose being in the faith is an incident of birth and not choice, and whose right to religion is purported to be exercised by her here to exit rather than enter the faith – an exercise of which she will be restrained from effecting freely under the “equal protection of the law” enshrined by article 8(1) of the Federal Constitution, if the sole arbiter of whether she could do it or not is only the syariah court, which, if assumption 1. above were correct, would be partial in their interpretation to entry and but not exit in relation to the faith.

In the premises, the Majority decision is defensible in logic only if it can be shown that any of the assumptions stated 1, 2 or 3 is incorrect : otherwise, with all due respect to the Federal Court, the logic of the dissenting judgment of the Court is preferred to what appeared flawed of the majority.

In the context of the proposed qualifications for judicial appointments, as raised and discussed in this thread blog, perhaps, YB you should propose that one of the most basic subjects that judicial officers and judges should take up before they sit on the bench (in addition to legal qualifications) ought to be logic 101!