The Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim announced at the close of the Asia-Pacific Judicial Reform Forum yesterday that a study would be conducted on judicial systems in the region to determine if a judicial commission on the appointment and promotion of judges would ensure the independence of the judiciary.
He said judicial experts will be looking at how judges are appointed and promoted, then look at which system would be best for the independence of the judiciary — and the preferred system will be recommended for countries in the region to adopt.
Justice Kenneth Madison Hayne of the High Court of Australia said six weeks would be set aside to collate the information and present it in a usable format.
He said: “Factual information will definitely be published, but we would be circumspect about publishing opinions expressed in the survey”.
Fairuz’ announcement is a disappointment for three reasons:
Firstly, while it is commendable that the Asia-Pacific Judicial Roundtable Forum wants to make a regional study whether a judicial commission on the appointment and promotion of judges would ensure the independence of the judiciary, 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.
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.
The history of mankind has proved again and again that the principle of the independence of the judiciary had often to be salvaged and established not only in the face of opposition of reactionary power-holders but in many cases in the teeth of opposition of serving judges as well.
Secondly, how is the Asia-Pacific Judicial Roundtable study on the judicial systems in the region to carry out its remit effectively with regard to countries like Malaysia which does not have such a judicial appointment and promotion commission?
This question becomes even more pertinent when it cannot pass unnoticed that the Asia-Pacific Judicial Roundtable in Putrajaya had ended without daring to register any protest or even comment on the judicial crisis unfolding in Pakistan, where its Chief Justice Iftikhar Chaudhry had been arbitrarily suspended by President Pervez Musharraf sparking a Pakistani political and constitutional crisis over the doctrine of the separation of powers among the executive, legislature and judiciary as well as the restoration of full democracy in Pakistan.
Thirdly, it would appear that the Judicial Roundtable study is being used as a good excuse for Fairuz to continue with his denial syndrome to further proscrastinate and frustrate judicial reforms, particularly on the urgent need to have a more transparent process of judicial appointment to ensure that the judges appointed are of merit, professionally qualified, persons of integrity and good character, independent and courageous.
The present system, where the judicial appointments are decided by two persons, the Prime Minister and the Chief Justice, have proved to be most unsatisfactory, plunging the country into a series of judicial crisis since the late eighties — and the national and international confidence in the system of justice enjoyed by the country in the first three decades of Independence has yet to be fully restored.
In this connection, it is relevant to ask what is the reason for the five-month paralysis of the judicial appointment process where the post of Chief Judge of Malaya remains vacant since the retirement of Tan Sri Siti Norma Yaakob on January 5?
I had raised this issue in Parliament during the Royal Address debate at the end of March, saying that it “reflects poorly on the efficiency and professionalism of the Chief Justice that he cannot ensure a smooth transition for high judicial appointments so that a new Chief Judge of Malaya was able to take over from Siti Normah on her retirement on 5th January 2007” – especially as Siti Normah’s retirement date was known beforehand as she was given a six-month extension (which cannot be further extended) when she turned 66 on July 6 last year.
I visited the website of the judiciary to find that Siti Normah is still described as Chief Judge although she had retired some five months ago. (http://www.kehakiman.gov.my/html/judiciary_members.shtml)
This raises the further question as to how IT-efficient is the judiciary despite the huge sums of money spent on the judicial system, with the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz early this year officially handing over the e-judiciary project to Fairuz, which promised an end to court delays, postponements and huge case backlogs when courts nationwide go online.
But can such e-judiciary system work successfully when the judiciary is not even able to update its own website after six months?