The country is faced with a full-blown constitutional crisis over the appointment of the third most important judicial office in the land, the Chief Judge of Malaya, which had been vacant for more than seven months since the retirement of Tan Sri Siti Normah Yaakob on January 5, 2007.
I first raised the issue of the paralysis of the judicial appointment process for the post of the Chief Judge of Malaya in Parliament during the Royal Address debate in March, and DAP MPs Karpal Singh (Bukit Glugor) and M. Kulasegaran (Ipoh Barat) and I have continued to demand to know why the country is still without a Chief Judge of Malaya whenever there was an opportunity in Parliament in the past five months but without getting any satisfactory answer.
Under Article 122B of the Constitution, the Chief Judge of Malaya “shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers”.
The appointment of the new Chief Judge of Malaya has not be able to get past the Conference of Rulers which have met twice since the retirement of Siti Normah, reflecting the constitutional crisis over the issue.
When the Prime Minister, Datuk Seri Abdullah Ahmad Badawi, who did not attend the recent meeting of the Conference of Rulers held at the end of last month as he was on private holidays overseas, was asked about the issue on his return, Abdullah said “he had proposed a candidate and it was now for the Chief Justice to conclude the appointment”. (NST 29.7.07)
After the Singapore Straits Times reported that the Conference of Rulers at its meeting last month had rejected the government’s nominee, New Straits Times quoted Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim as saying that the the vacancy for the Chief Judge of Malaya is expected to be filled by August 31 and that the identity of the nominee was classified under the Official Secrets Act.
Although Ahmad Fairuz has denied that he had said that the appointment would be made by August 31, I understand that this statement by the Chief Justice is recorded on tape.
But the more important issue is why should the Chief Justice invoke the Official Secrets Act to suppress all reports referring to the official nominee for the post of Chief Judge of Malaya, whom I understand is one of the most junior Federal Court judges — as if such a nomination cannot withstand public scrutiny.
When he was appointed Chief Justice in March 2003, I said his greatest challenge was “whether he could institute the structural judicial reforms to fully restore public confidence in the independence, impartiality and integrity of the judiciary — and one important issue is the system of appointment of judges”, as “Malaysia urgently needs a more transparent process of judicial appointment to ensure that the justice administered by the judges is of superior quality because they are professionally qualified, persons of integrity and good character, independent and courageous”.
I called at the time, which I subsequently reiterated in Parliament, for addressing the flaws of the existing unsatisfactory system, where the judicial appointments are decided by two persons, the Prime Minister and the Chief Justice, viz:
- Selection and appointment procedure not transparent;
- Consultative process is secretive; and
- There is a lack of appraisal of the candidates against pre-determined criteria.
If Ahmad Fairuz had undertaken judicial reforms to introduce the principles of accountability, transparency, meritocracy and integrity for judicial appointments before involving the Prime Minister and the Conference of Rulers – which many Commonwealth countries have already carried out in their reforms to modernize their system of justice – the present constitutional crisis and impasse of seven-month vacancy for the post of Chief Judge of Malaya would have been averted.
Yesterday, Ahmad Fairuz said the Prime Minister Datuk Seri Abdullah Ahmad Badawi had the final say on the appointment of the Chief Judge of Malaya.
He said the Federal Constitution stipulated that the Prime Minister consulted him (Chief Justice), while the Yang di-Pertuan Agong consulted the Conference of Rulers on the appointment.
He said the opinion of the King and the Conference of Rulers are not binding on the Prime Minister.
He said: “The ultimate decider is still the Prime Minister because the King acts on the advice of the Prime Minister.”
I agree that legally and constitutionally, the Conference of Rulers has no right to veto the choice of the Prime Minister on the candidate for the Chief Judge of Malaya.
However, the consultation process in the judicial appointments, whether in the case of the Chief Justice by the Prime Minister, or the Conference of Rulers by the Yang di-Pertuan Agong, must be a full, proper and meaningful process and not just a matter of formality with no meaning or purpose whatsoever.
When consulted, the Conference of Rulers is duty-bound to give full and weighty consideration to the subjects raised, including bringing up grave doubts or reservations or even asking for reconsideration of the original proposal if there are very good, valid and powerful grounds.
Just to give an example. Recently, Malaysians have been shocked by series of scandals highlighting a deplorable plunge in standards and performance in all departments pertaining to the administration of justice — whether sloppy investigation, sloppy prosecution and even sloppy judicial conduct.
New Straits Times in a front-page report on 23rd July 2007 “JUDGES FAIL WRITTEN TEST” exposed the numerous horror stories of miscarriage of justice such as the accused languishing in prison just because judges did not provide written judgments and referred to one Federal Court judge with “at least 30 outstanding judgments accumulated from his High Court days that include drug trafficking and murder cases”.
Hypothetically, if this particular Federal Court judge is nominated for the office of Chief Judge Malaya, the Conference of Rulers would not only be duty-bound but would have very strong and powerful grounds to raise objections and ask for the reasons for proposing such a nominee and even to ask for a reconsideration by the Prime Minister if the “consultation” process stipulated by Article 122B of the Constitution is to be meaningful at all.
The Prime Minister should inform Parliament by way of a Ministerial statement when it reconvenes on August 27 the background and reasons for the constitutional impasse with the Conference of Rulers over the appointmernt of the Chief Judge of Malaya and how he proposes to resolve it, fully in line with the principles of accountability, transparency, integrity and good governance.
#1 by dawsheng on Saturday, 11 August 2007 - 2:49 pm
Abdullah can always go ahead without the Rulers Council’s consent, right? Is there anything he should be worried about?
#2 by LittleBird on Saturday, 11 August 2007 - 5:31 pm
Yalah..so confusing. If DYMM is just to appoint whoever selceted by PM then why is the rulers conference need to be consulted. Obviously, the constitution requires the DYMM and the Conference of Rulers to act as the check and balance. If what Fairus is saying right then does it mean the rulers conference is just something to be dispensed with.
Isn’t he showing disrespect to DYMM and Conference of Rulers!!
#3 by grace on Saturday, 11 August 2007 - 6:17 pm
Pak Lah should respect the wish of the rulers. This Fairuz fella is retiring real soon.
If Pak Lah is wise, select the most qualified and senior judge and then no one will question his choice.
In view of recent opinion expressed by HH Raja Nazrin, I believe Pak Lah has a lot to clean up the admin . For a start, start with the judiciary.
The rulers are very competent in selection the type of judge simply because HRH Sultan Azlan Shah was himself a very highly respected judge whose judgement is world class. Not only that he was the Lord President himself. Surely he knows what is required of a good Chief Justice of Malaya.Therefore the rejection of the nominated candidate is not without good reasons.
If Pak Lah is wise, concurr with the decision by the rulers.
#4 by Jeffrey on Saturday, 11 August 2007 - 6:52 pm
Article 122B states that “The Lord President of the Federal Court [the Supreme Court since 7 January, 1985], the Chief Justices of the High Courts and other judges of the Federal Court and High Courts shall be appointed by The Yang Di-Pertuan Agong acting on the advice of the Prime Minister, after consulting the Conference of Rulers…â€Â.
According to NST’s report, (1) “Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim explained yesterday that Prime Minister Datuk Seri Abdullah Ahmad Badawi had the final say on the appointmentâ€Â; and (2) “the Federal Constitution stipulated that the Prime Minister consulted him (Fairuz), while the Yang di-Pertuan Agong consulted the Conference of Rulers on the appointmentâ€Â.
Statement (1) is true because under our ‘constitutional’ system (unlike absolute monarch), sovereignty with the people, exercisable via elected government represented by the Prime Minister. Besides under Art 40 (1A) of the Constitution when the Prime Minister submits the name to The Yang Di-Pertuan Agong, the latter is constitutionally duty-bound to accept the advice of the Prime Minister.
But whilst statement (1) is correct, with the greatest respect to the Chief Justice, statement (2) is contentious.
What the CJ said in (2) is based on what Lamin PCA said in Re Dato’ Seri Anwar bin Ibrahim, in which Lamin PCA construed the requirement of consultation specified in Art 122B(1) as consultation directly between the King and the Conference of Rulers, a point since refuted by DYM Sultan Raja Azlan Shah.
According to Sultan Azlan Shah (I quote) “the statements made by Lamin PCA in this case seem to suggest that the Conference of Rulers gives its advice directly (and only) to the Yang di-Pertuan Agong (“the King”), and not to the Prime Minister. In practice, this is not the case. The Prime Minister submits the names of the candidates to the Conference of Rulers. The Conference then submits its views to the Prime Minister before he tenders his advice to the King. Therefore, the views of the Conference are, strictly speaking, given to the Prime Minister. It is then for him to consider these views before he makes the final recommendation to the King. Only when such a procedure is followed can the Conference of Rulers play an effective role in the “advising” process”. (Unquote) – reference “The Role of Constitutional Rulers and the Judiciary Revisited” in Sinnadurai, V (ed), Constitutional Monarchy, Rule of Law and Good Governance (Kuala Lumpur: Professional Law Books, 2004) on pages 397-398. 385.
I agree with what Sultan Azlan Shah said because a King cannot be under two separate (potentially conflicting) constitutional duties all at one time of having to consult the Conference of Rulers and at the same time act on advice of PM in matters relating to judicial appointments. Such a formula is fraught with potentialities of constitutional impasse as it may be asked – what happens if PM’s candidate is not agreed upon by Conference of Rulers, who is the King supposed to listen to?
The preferred interpretation on the ‘flow’ of consultation under article 122B of the Federal Constitution should be as what to Sultan Azlan Shah (a constitutional expert) said. It is more logical, and averts potential conflicts of position leading to constitutional impasse.
Yes, to restate, the King is constitutionally bound to follow advice of the PM but this is always subject to the overarching requirement that the PM shall have first consulted the Conference of Rulers.
The present problem may well be one where the Conference of Rulers appears to have not been “consultedâ€Â, a euphemism for it not having apparently agreed to the PM’s candidate for reasons now shrouded under the protection of the Official Secrets Act!
I am in complete agreement with the need of the PM to consult the Conference of Rulers and that such consultation “must be a full, proper and meaningful process and not just a matter of formality with no meaning or purpose whatsoever†– and that in this consultation process, as much as “the Conference of Rulers is duty-bound to give full and weighty consideration to the subjects raised, including bringing up grave doubts or reservations or even asking for reconsideration of the original proposal if there are very good, valid and powerful grounds†(as stated by YB Kit), so the PM too must give serious consideration to the misgivings of the Conference of Rulers if any.
This is because although appointing judges is the PM’s prerogative, he is duty bound to the people to ensure judges appointed are of the highest caliber – and not those who can’t even pass written test or perhaps the CLP examinations! – and most importantly, independent.
Why independent? – the reason is because our constitution embraces Montesquieu’s imperative of separation of 3 branches of powers – Executive, Legislative and Judiciary – to ensure that at no time could any 1 or 2 branches abuse power and tyrannize the very people it is supposed to serve without the 3rd branch providing the necessary check and balance.
[Baron de Montesquieu was one of the great political philosophers of the Enlightenment Period that influenced the Common Law adopted by our “hybrid or rojak†constitution and this ios what he said (I quote) “There is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.â€Â]
As such, our constitutional rulers do play the role of check and balance – as the fourth estate, if you will……just like an independent press, which we so lack until of late the counterbalance of alternative media and blogs like this one and of course Raja Petra’s fill the gap….
What I think the Conference of Rulers is trying to do is to re-assert the principle of Judicial Independence which had been managed by the preceding administration under TDM in the sacking of Tun Salleh Abbas, forced resignation of Judge Syed Idid who alleged corruption, which if I may add, was publicly conceded to by our present CJ that there were corrupt judges.
We should support the position of Sultan Aklan Shah and the Conference of Rulers,
Listen to what his son the Raja Muda of Perak, Raja Dr Nazrin Shah said of what Malaysia could be.
The Rulers have spoken and given the cue – and the message is getting clearer on the eve of 50th Merdeka that steps must be taken to check the national decline, the first of which in the correct direction is to restore independence of judiciary by blocking arbitrary appointments and getting the right judicial referees appointed, without which (ala Montesquieu’s fashion) there will exist no bulwark for the rights of ordinary citizenry against the encroachments and the abuse of power that have so rampantly occurred as highlighted by the blogs ……….
#5 by Jeffrey on Saturday, 11 August 2007 - 7:01 pm
I would add the following quotes of the learned Sultan Azlan Shah by way of postscript to the above comment:
“It is generally accepted as good practice that whenever an appointing body receives from another independent and respected body an adverse report on a candidate, such advice should be given serious consideration. In most cases, the advice will provide sufficient and compelling reasons as to why the candidate should not be appointed to the post. If this procedure were complied with, the appointing authority will be in a position to avoid any accusations of bias or favouritism. This mechanism, thus, protects the appointing authority from any allegations of improprietyâ€Â: per Sultan Raja Azlan Shah page 397.
Sultan Azlan Shah could not “rationalise why a Prime Minister would not want to consider, or even abide by the views of nine Rulers and four Governors who constitute the Conference of Rulers”, adding that, after all, these are “independent persons, with vast experiences, and with no vested interest in the nominated candidates. Their duty is to fulfil their constitutional role in ensuring that only the best and most suited candidates are selected for the posts†– page 397
#6 by undergrad2 on Saturday, 11 August 2007 - 7:17 pm
“I agree with what Sultan Azlan Shah said because a King cannot be under two separate (potentially conflicting) constitutional duties all at one time of having to consult the Conference of Rulers and at the same time act on advice of PM in matters relating to judicial appointments. ” Jeffrey QC
The King does not consult the Conference of Rulers.
The Constitution speaks about consultation being made of the Malay Rulers acting together as the Conference of Rulers – and not individually. The Prime Minister after consultation with the Conference of Rulers then advises the King who sits on the Conference of Rulers as the ruler of his State (not as Agong or King).
The Conference of Rulers need only to be ‘consulted’ and its opinion sought. The Constitution makes no reference anywhere that the Conference of Rulers must first agree before advice could be given to King although the King needs to make the appointment.
Convention requires that the King acts accordingly as ‘advised’ by the head of the executive branch, the Prime Minister. The force of convention in a constitutional democracy like Malaysia which follows the U.K. is greater than the letter of the law. No constitutional ruler has ever acted to refuse the ‘advice’ of the head of the executive branch.
#7 by undergrad2 on Saturday, 11 August 2007 - 7:21 pm
ooops sorry instead of constitutional democracy it should be constitutional monarchy.
#8 by lakshy on Saturday, 11 August 2007 - 7:22 pm
I say the government should condemn Singapore’s Straits Times for its article which states the rulers have rejected the nomination put forward by the PM. This article is malicious and the intention is questionable since everything is in order in malaysian judiciary. After all the government and Judiciary says that everything is hunky dory…..
#9 by undergrad2 on Saturday, 11 August 2007 - 7:23 pm
Can it withhold its ‘approval’? No. Because the King nor the Conference of Rulers have the right to refuse. No time limit and so no can withhold? It cannot because that would contravene the doctrine of the separation of powers.
#10 by lakshy on Saturday, 11 August 2007 - 7:23 pm
…..Hmmmmmnnnnnn makes one wonder though why Malaysia has yet to do so!
#11 by undergrad2 on Saturday, 11 August 2007 - 7:25 pm
“…since everything is in order in malaysian judiciary.”laksy
Please elaborate! It begs the question.
#12 by undergrad2 on Saturday, 11 August 2007 - 7:26 pm
Everything is out of order in Malaysia’s judiciary.
#13 by undergrad2 on Saturday, 11 August 2007 - 7:28 pm
Senior judges are bypassed. Junior judges are promoted via a process which is controlled by the executive. Process is not transferred. Other senior judges are not consulted nor are members of the legal profession consulted.
#14 by undergrad2 on Saturday, 11 August 2007 - 7:29 pm
process is not transparent ( transferred ? sheeeeesh what am I talking about!)
#15 by undergrad2 on Saturday, 11 August 2007 - 7:36 pm
As for the process of nomination coming within the political control of the executive, the same criticism can be made of the system in the U.K. and all the other common law jurisdictions like Canada and Australia.
The Lord Chancellor is in all three branches of the government i.e. executive, legislative and the judiciary. It is a political Lord Chancellor. But at least in the case of the U.K. the Lord Chancellor consults senior judges and members of the legal profession and nomination is based on merit via a process which is transparent.
#16 by Jeffrey on Saturday, 11 August 2007 - 8:15 pm
Though the King is constitutionally bound to follow advice of the PM this is always subject to the PM having met the constitutional requirement of consulting the Conference of Rulers (with the meaning of consultation here being to seriously consider their reservations if any and to assuage these reservations where it is reasonable to do so which opens wide the other question whether if the PM fails to adhere to this constitutional obligation to consult the Conference of Rulers (in the meaningful sense as stated above) this omission would release the King from having to take the PM’s advice as convention dictates. This may be the looming issue.
#17 by raven77 on Saturday, 11 August 2007 - 10:56 pm
Issue is fairly simple……they nominated a dumbo so bad that even Azlan coudlnt swallow it……basically telling Badawi….if you want to be known as a dumbo fine…….but please dont drag us into that cesspool of yours……..so Badawi better swallow whatever dignity if he has anything left and appoint someone else quick before his entire government falls…..what it wont happen???……..hey man….there is always a first time for everything and…..do you want to be the first ever PM to be sacked…….
#18 by Rocky on Sunday, 12 August 2007 - 12:29 am
Why can’t the PM appoint the best available senior judge? If he has the best interest of the people, he should do that. appointing a junior judge just raises too many questions. I glad the Rulers have stepped in.PM should be shamed that as an elected person, he is not doing what is best for the people and country. Pak Lah’s reputation and standing is just heading south
Jeffrey – thanks for your views. always enjoy reading your opinions.
#19 by Jeffrey on Sunday, 12 August 2007 - 12:53 am
Rocky,
Most welcomed. :)
#20 by Bobster on Sunday, 12 August 2007 - 1:15 am
One blunder after another. How could we fellow Malaysians respect the PM the way it goes? All I can say is PM/BN are seriously shaken will all the major screw ups n the administration, constant denial syndrome, police intimidation and harassment technique causing their reputation going even faster down the drain.
#21 by dawsheng on Sunday, 12 August 2007 - 2:19 am
First Abdullah fall out with TDM and now he is falling out with the Sultans. Abdullah has to thank Khairy Jamaludin for what he is today.
#22 by madmix on Sunday, 12 August 2007 - 11:12 am
If Raja Petra can be accused of insulting the Agung, will not going ahead without the approval of the Agung be an insult to his majesty?