I am in favour of second option of giving Zaki the opportunity to acquit himself. Not that we can do anything about it even if we object. For his appointment is constitutionally the Prime Minister’s prerogative.

People are supposed to differentiate and know what “hat” they are wearing on accepting important appointments such as this.

One hat is the lawyer’s – Zaki had “close and long association with UMNO as UMNO lawyer both for the party and its very intricate and complex corporate network and affairs, as well as head of UMNO disciplinary board”. The other hat is now – as Chief Justice one of the prerequisites is independence from the Executive.

The main objection is our perception of human nature, that it is such that after the government has been patron, and Zaki beneficiary, how could he not be beholdened and side the government? Can he differentiate the two hats?

Probably he could not; may be he could. The question is whether against the odds we should give him the benefit of the doubt.

I would give two basic reasons why we should.

The first is to date, and in short stint as Federal Court judge, Zaki’s conduct on the bench has been beyond reproach. We have not heard from lawyers whose job is to ply the courts complaining about his judicial bearing, conduct and handling of judicial matters or that political affiliation or business interest has in anyway influenced his judgment. So he is wearing the second hat in quite a fit manner – so far. One may protest – he can change. Yes, any one can, even those without political affiliation in the beginning! Preceding Chief Justices mired in controversy – Tun Hamid Omar, Tun Eusoff Chin and Tun Ahmad Fairuz – were not affiliated with UMNO before they were appointed Chief Justice. So I say we let the man wear his second hat first and see if he fits that hat rather than preempt and say ahead of time it will not fit because his head is already too big after wearing the first hat!

The second reason is the objection that ideally the doctrine of separation of powers would require that Judiciary be independent of the Government and be “seen” so, and therefore Zaki’s appointment should be challenged as tainted by patronage politics at inception.

The trouble is we do not live in ideal world. Even so, we must compare with other nations better than us in terms of judicial independence and see how they tackle problems of such nature.

However when we start comparing we get shocked because just about every appointment of high judicial office throughout the Common Wealth and the developed world in which the Rule of Law is supposed to rein and doctrine of separation of powers held dear is a political and patronage appointment. Historically majority of high judicial appointments are patronage rewards for political service….

Can we therefore expect Malaysia, already with a Judiciary mired in controversy by executive interference during TDM’s administration, now demand and expect a higher standard of top judge’s appointment based solely on considerations of merit than political than the rest of the developed world which has not yet been able to do so? Is it realistic to so expect?

It is probably fairer to let Zaki do his job. He will be mindful of people’s distrust owing to his past political affiliation with UMNO. Hopefully he goes out of the way to prove the expectations wrong.

Every government will try to influence Judiciary to its side : after all Judiciary is third branch of government, the Legislative being second and Executive the first.

It behooves us as ordinary citizens to be vigilant of our rights and keep the government in check and make sure it does not try to interfere with the judiciary. If it does, then more votes against it in the next general election. That is about all we could do for the time being.

Of course you could invoke Article 127 of the Constitution to move a substantive motion in Parliament to discuss Zaki’s appointment. PR has the numbers – 55 MPs.

There are however things to consider.

1. Will our Speaker allow motion to discuss? Likely no.

2. What’s the point of discussing in Parliament then? Can PR veto the appointment or change the government’s choice? Also no.

3. If PR can’t, then the only good (if such motion allowed) is to bring and discuss openly all the demerits of his appointment. If you bring out his UMNO affiliation, it is a waste of time. They are appointing him precisely because of that affililiation.

4. So the only other thing is to bring out all dirty linen about him in the past tearing marriage certificate, has marital controversies etc. What is good in all these?

The government is going appoint him CJ anyway. There’s nothing that will be brought up that those who favour his appointment do not already know.

So the outcome will be we’re going to have a new CJ who comes with a record of his personal conduct and personal private life being brought out, laid bare, criticised and condemned before his first day in office as CJ.

Does this serve national interest? Or help the Cause of making Judiciary more independent? Or give it more respectability?

Likely the repute of our institution of Judiciary – already mired in controversy – will be tarnished further by parliamentary debate on the personal life and marital sheninegans of the top judge.

Drawing an adverse inference of a person’s fitness and capability to discharge public office duties from his private relations (ie succesor or failure as husband or father etc) is at best precarious.

It could be easily rebutted by examples of many outstanding judges with fractured marital life and rumours or facts of marital infidelity as those whose marital lives have been ordered, structured and, by repute, “good” by society’s norms.

Some may even have wives who are such shrews that they could drive an otherwise perfectly normal husband to do desperate things far worse than just tearing marriage certificate or leaving the marital home…

When it comes to private relations at close quarters like marital relations, it is difficult to generalise unless you know the inside facts in totality.

“Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. …” so said the famous and outstanding American Judge Learned Hand, whose own personal marital life had not been free of controversy. :)

In response to Godfather’s posting 21: 46.21, No, I have not read any of Zaki’s judgment.

In the first place I don’t think he has stayed long enough on the bench to render many significant landmark decisions that people like you and I would be acquainted with.

I have also in earlier posting Today at 06: 34.07 explained the basis of my comments and brilliance of judgment was not one of the basis.

Besides I wonder who amongst those those who have been negative towards his appointment had read any of his judgment to form a negative opinion. Have you?

It is a mistake to think that the role of a Chief Justice is mainly to sit as judge and hence render good judgment.

This is not so. Hearing cases – a purely judicial duty – takes up but a small part of his overall responsibilities because very few appeals reach his level. The high court judges below hear more cases.

Other broader and wide ranging duties and responsibilities besides judicial are:

1. administrative duties : he runs the court system, assign cases and divide responsibilities to hear cases between judges; assume oversight over registrar, clerks, finances, payroll, promotion, discipline etc;

2. Liaison duties to liaise with Executive or Legislative and articulate the concerns of judiciary to these other branches of government and smoothen the rucks if any in these relationships between the Courts and Legislative or Executive;

3. Public Relations duties : inform the Bar Association the latest procedures in the Courts, attend seminars, conferences, talks organised by other professional bodies or universities;

4. Help develop the law by highlighting to government/AG Chambers what are the problems related to the law or loopholes in legislations that need correction and this would include suggestions for judicial reforms as well.

I also think it is very judgmental to describe him a “person of loose morals”, a very unfortunate choice of word and description, assuming the word and description correspond to the thinking process.

It is beyond the purview of this thread otherwise I would like to go further to ask what exactly are morals considered loose and the basis by which you come to such a conclusion.

“Getting married at the border to circumvent what was at the time local syariah laws” is immoral? If so, falling in love for the second time (after one is married) with another woman is immoral. I know some otherwise responsible people who in matters of the heart like this crossed the border because by local syariah law here, they are not permitted by sharia to get married the second time because the wife here would not give consent under any circumstances or unless with a huge financial settlement…..

Burning that Perlis marriage certificate to hide the marriage from his first wife was an act that both he and Nor Hayati Yahaya, 32, agreed to. This is because the first wife would not permit it and the law favoured her, not that it was anything wrong about the law or the first wife per se at that.

However getting married in a textile shop in Perlis presided by a kadi from Thailand when the second (Nor Hayati) was pregnant (if her sworn statement may be believed) was an act attempting to give a measure of decent legitimacy to the innocent “to be borned” child.

Deceiving a first wife? Yes it was. Even if a person wants to be honest in emotions, the law that favours the first wife intervenes to prohibit or put obstacle to the change in heart.

As Justice Learned Hand said, “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it” but yet the law seeks to restrain it!

If this act, like adultery and having clandestine relations with another woman hidden from the wife and deceiving her is “loose morals” then a lot of men in this world have “loose morals” (which you don’t know about) because it was not made public.

In affairs of such nature backed by “100 SMS messages” it is, as always, a triumph of emotions over logic, a “foolish” condition that has afflicted men of greater public achievement and higher office than the person under discussion.

The fact that a man holds certain position and has certain financial means therefor attractive to many of the opposite sex who throw temptations along the way does not help in discipline of emotions.

The fact that you or I were not so foolishly afflicted is not a license to judge adversely others so afflicted. We are also not in the same situation as them.

Why does a man do all this? He falls in love that he cannot help it. One can say its sublimal lust, an act of testosterone, raging unrestrained libido and if this were the case, then maybe you who has tighter morals in this respect are not so well endowed or cursed by Nature by this natural biological imperative to ride that moral high horse!

Looking at bigger picture it may well be a foolish act and some like Undergrad2 who demands a person holding high public office is ‘squeaky’ clean in the sense of ‘free from controversy’ (to put up with our collective hypocrisy of “good morality”) is entitled to the opinion – but to readily say a person is by such circumstances of “loose morals” is being lose and fast with words and when applied to a person of standing, especially a sitting judge to be CJ based on mere unproven allegations of the second wife is skating on the thin edge of contempt of court and exposes this blog to risks of a defamation/libel suit.

Today the kind of “loose morality” in respect of public officials that I am more worried about than their private sexual peccadilos and sheninegans are, to cite a few examples:-

· Persons who when caught on video evince no accountability and admission of guilt but who say “looks like me, sounds like me but……”

· Persons who privatise and piratise public funds meant for public good as if they were his own resources;

· Persons who incite racial and religious hatred and ill-will to whet the appetites for political ambitions;

· Persons who twist and turn and sign off papers incarcerating others without trial just to appease Power;

· People who bury their own mistakes of consorting with underaged girls by invoking power to send the whistle blower to jail;

· People who are authoritarian who wield power to amend our constitution abrogating our rights so that he could rein supreme;

I can go on and on.with list but you get the drift….

And many of such persons may even have “squeaky” ordered and structured family life. No extramarital affairs. No betrayal of their wives and children. Instead, an extreme doting and love for their wives and children, housing them in palatial luxurious mansions sending their wives on expensive overseas shopping trips, their children to expensive boarding schools and universities abroad…..

These are the persons who need to stay in political power at all cost to make the money to finance the life styles and prospects of their beloved wives and children and people will do anything even unconscienable things to preserve that political power at others expense and liberty.

These are the “loose morals” in so far as they relate to the public realm and public officials that I am terribly afraid of.

To say what I said was “paranoid thinking” is ignorant. If what I say is not true above why the need for moderator to moderate comments (not made by blog owner)?