I reiterate here that Pakatan Rakyat (PR) is treading on very soft ground – whether by (1) constitution, (2) logic or (3) precedence – to attack at this juncture Tan Sri Zaki Azmi’s appointment as the Chief Justice by the PM.

(1) By Article 122B (1) of Constitution : The King has to take PM’s advice, and it is the PM’s prerogative. We can’t question that prerogative.

(3) In terms of precedence regarding whether political appointment of a top judge will compromise judicial independence from executive, no where in countries known for Rule of Law or judicial independence/separation of powers has the appointment of the top judge being free from partisan politics and Executive favour so how can we demand for the same here to prove the point???

In the United Kingdom the Lord Chancellor is appointed by the Sovereign on the advice of the Prime Minister. He is a member of the Cabinet and, by law, is responsible for the efficient functioning and independence of the courts. The present Lord Chancellor, The Rt. Hon. Jack Straw, is also Secretary of State for Justice. Since Constitutional Reform Act 2005, the Lord Chancellor is no more sitting as a judge unlike our CJ but like our CJ, the UK’s Lord Chancellor has a role (like our case) in recommending to the PM who to appoint as judges of the courts of England on the advice of a supposedly independent Judicial Appointments Commission He can only choose whether to accept or reject its recommendations.

In our case PM/Nazri say that Judicial Appointments Commission (JAC) is also on the way. What has JAC whether now existing or later got to do with appointment of top judge? In UK JAC advises the top judge Lord Chancellor, it does not select the Lord Chancellor, it is still the PM’s prerogative to choose and recommend that position as here!

Take the case of the United States, one of the most distinguished Supreme Court Judge later replacing Warren Burger as Chief Justice(1986–2005) – William H. Rehnquist.

Rehnquist began his career participating in the Republican Party. He became a Republican Party official and achieved prominence in the Phoenix area as a strong opponent of liberal initiatives such as school integration. Rehnquist campaigned for Republican presidential candidate Barry Goldwater during the 1964 elections. President Reagan selected him as Republican Chief Justice. Rehnquist however won the respect of his colleagues through his efficient management of court affairs. Rehnquist has also revealed a moderation in his views by voting with liberals to protect gay rights and free speech.

So where else can you find in the world a top Judge whose appointmemt is not somehow connected politically? He won’t get a the job otherwise. Surely one cannot (realistically) expect PKR’s lawyer Sivarasa to be nominated by PM for this top job of CJ just to prove (though our AG is)!

Fighter asked,”Zaki was UMNO’s Chairman for its Election Committee and its Technical Committee and was also its Deputy Chairman for its Disciplinary Committee. Can this be considered as “professional work”?”

It may not be considered professional work but could be a result of the professional relationship. It could suggest convincingly he was affiliated with the patrty ideology. As I said earlier even in ‘beacon of democracy’ (to use Undergrad2’s expression) Presidents nominate individuals who broadly share their ideological views, eg the renowned American judge, William H. Rehnquist (1986–2005).If Pakatan Rakyat comes to power and nominates Sivarasa or any of the many lawyers sympathetic to PR’s Cause as Chief Judge, would you object based on ideological or party affiliation alone???

Zaki’s holding directorships in Vincent Tan’s companies was an association that by itself ought not to be relevant, at least in my view.

I agree that there is something about what you said in respect of “bomabarding 100 sms daily, married at a textile shop at the bordertown and forced the girl to destroy their marriage certificate”, probably a Testosterone driven act, which some would not dismiss lightly.

However I wish people would not use a person’s private (sexual) morality/indiscretion as sole overriding factor to disqualify him for public office if he were otherwise competent. I am heartened that Dr Chua Soi Lek made a clean breast of it in interest of accountability, resigned, and in spite of being what some would call an unwitting pornographic actor has now got the support to contest and win (albeit by narrow margin) the MCA Deputy Presidential Post!

Even then I would agre, as what Godfather earlier said, that the top judge’s post is not any post and some may argue that it is more or ought to be more hallowed than a Minister’s post. That’s a matter of opinion, I am just loking at public office generally in relation to blemished private conduct.

Those whoknew Zaki at close quarters might be sure that he is incompetent even as a lawyer much more as a top judge, something that I personally don’t know, so I am wiling to cut him some slack and see how he performs.

It is of course not an ideal appointment but realistically what can we expect from the govt? The field of elegibility for appointment that meets its boundary conditions is narrow and the pickings a re few.

Of course we can question its boundary conditions and talk of Merits being only criteria but since when Merits has been the major consideration whether picking top judge, top director general or any departments, minister oir any position a s far as the feudal culture of UMNO goes?

Realistically, knowing the govt, we have to revise expectations down and instead of expecting them to select the best, hope they won’t select the worst. :)
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Fighter, I do acknowledge the good points raised by you in rebuttal.

But just to round it up:

On your point about “majority will object strongly for anyone, whether Sivarasa or Zaki, to hold the post of Chief Justice”, it is based on the ideal “justice must not only be done but seen done”. However I wonder where that ideal is really practised. As I said in earlier posting, Chief Justice William H. Rehnquist (1986–2005) was a Republican Party official and campaigned for Republican presidential candidate Barry Goldwater during the 1964 elections.

It was in his case not ideological or party affiliation alone but also heavy commitments and dedications. I also said that in the UK the Lord Chancellor (equivalent to our CJ position in that it entails appointment of judges) is also member of the Cabinet contrary to separation of powers.

Your other point is more forceful about “when found out by the 1st wife pressured the poor girl, half his age, to destroy the marriage certificate!” Some would say it is illegal.

I know quite a few Datos & big wigs who, when facing difficulties over here, crossed the border to Hatyai to marry 2nd or 3rd though in their cases, not implicating destruction of marriage certificate (obtained in Thailand).

To me ultimately these misfeasances arise from trying to maintain damage control back home resulting from first cause of a certain lack of discipline/restrain of libido/testosterone.

I guess our main difference in position is that I have since revised my expectations several notches down.

The post of chief justice requires a person of legal scholarship, judicial temperament and administrative talent to run an efficient functioning and independence of the courts.

In a less than ideal situation where you and I can do nothing (besides criticisms) about how the PM chooses, it might be unuseful to speculate or argue with certainty and finality that Zaki’s earlier UMNO commitment or destroying the marriage certificate are definitely = he’ll be a hopeless and bias CJ and that he won’t reform Judiciary.

So far I have not heard from lawyers friends who ply the courts saying negative things about Zaki having bad judicial temperament.

Strangely neither the Malaysian Bar of 13000+ lawyers or their Bar Council have objected or iniotiated resolutions against Zaki’s appointment whether as Federal Court Judge or now Chief Justice along lines of objections raised by you and other commentators here. I wonder why.

Though person sitting on that CJ chair is important, there are two other factors more important and decisive on the state of our Judiciary than just merits/demeits of initial appointment.

One is we must have institutional check and balance like an independent Judicial Appointments Commission and also a vigilant and enlightened public opinion to keep judicial misfeasance in check.

Two, is the Executive’s attitude : they should change and stop interfering with judiciary, and we should pressure them to hands off. In 1988, the 5 relatively independent judges didn’t help against against an overbearing Executive. They got sacked or suspended.

Anyway, thanks for the debate.