Thursday 26 April 2007

Report on the Bar Council-Sponsored Debate on Appointments and Promotion of Malaysian Judges

From Malaysian Bar Website: Read Here

Read here Full Report on the Debate,Titled "There is a Need, in Malaysia, to Establish an Independent Judicial Commission in Relation to the Promotion and Appointment of Judges"

READ HERE for Context and Background on Why Appointments and Promotions of Malaysian Judges are Questionable and UNFAIR . Read HERE and HERE and HERE and HERE

UPDATE: The Government has REFUSED to Setup an Independent Judicial Commission for Appointments and Promotion of Judges.
Read here for more

The government remains unconvinced of the need for an independent judicial commission.

Minister in the Prime Minister’s Department Datuk Seri Mohd Nazri Aziz yesterday reiterated his stand that the commission was unnecessary.He also questioned whether the commission, intended for the promotion and appointment of judges, would be truly independent.

"Only if the commission can say it was sent down from heaven and appointed by God, can it truly be independent. The words ‘independent judicial commission’ are an illusion."

"The members will always be beholden to somebody, the persons who appointed them," he added.

The Bar Council first proposed an independent commission relating to the promotion and appointment of judges about a decade ago. The setting up of the commission, made up of individuals, including lawyers, academics and former judges, has also been supported by former judges and the Malaysian Human Rights Commission (Suhakam).
Excerpts of the Report: Read here for more

The debate was between De facto Law Minister, Datuk Seri Mohd Nazri Aziz and Kota Bahru MP Datuk Zaid Ibrahim

Datuk Zaid Ibrahim spoke FOR the Proposition

"... Zaid Ibrahim spoke for the proposition by saying this motion is not a new subject, and that he had heard it 6 years ago.

He said the judiciary is in dire straits (because it ) is seen as an extension of the government department.

The judges are Malays, and it is just like a Malay department, adding that he has no problem with that if selection process is transparent and the criteria for selection are known.

"One then begins to ask if this is another government department, another agenda, a Malay agenda. Is it an agenda for justice?

"We know some good judges who are still languishing at High Court level for years. Some have been promoted up and up.

"Of course, the Chief Justice said because he has consulted a lot of people, he does not need to explain the basis for his decision. But that is what integrity and transparency are all about - to explain and justify.

"But we do not have that in the judiciary. There is also talk about corruption in judiciary - not among lawyers but also by inside people," said Zaid.

He said Syed Ahmad Idid put it openly. Idid who made serious allegations also named names some 10 years ago. Even the former Attorney General, Tan Sri Abu Talib said in one of his interviews that there was no investigation.

He charged that now we have questionable decisions made even in corporate cases like the Ayer Molek case and the conversion cases which have also caused concern among lawyers and the public.

Being mindful of what the Chief Justice said recently that slanderers are worse than murderers, he asked how could that be possible when we lawyers have no ulterior motive, and we say it because we want to see what is good for the people, the government and the judiciary.

"We have no ulterior motive. I don't think the Bar has got ulterior motive. What do they get? What can some of them want to be judges - judges are so poorly paid!

"So we do not have the ambition. We are concerned because the best people to know about the judges are the lawyers. The Barisan Nasional government must believe in what we say, unless proven otherwise", Zaid said.

Zaid said Nazri could make his mark by persuading the government to have this commission - to select the best among us. The best, Zaid said, are smart fellows, qualified lawyers, good scholars and those who have integrity and courage.

He explained we could do that if we have an independent commission.

What is so difficult about the commission?

How will it take away anything except to make it more transparent and accountable?

"If South Africa, a newer democracy can do it, how come WE CANNOT do it?" he asked.

"It is beyond one man to pick the judges. We need a structured organisation. We need people to vet through the applications as even with qualifications we have messed it up, " Zaid said, referring to the appointments of Datuk Dr Visu Sinnadurai and Dr Badariah Sahamid.

"If we cannot get the minimum qualifications right, how do we expect to get it right on character?" he asked.

Good judges are good for the government. Good judges are good for the country. He said one may say this is a view of the minority.

But citing examples showing otherwise, Zaid said after the Tun Salleh Abas crisis, Tun Suffian lamented that it would take a generation for the judiciary to recover. In 2001, Tun Dzaiddin said public confidence in judiciary was at its lowest point.

Nothing has happened since 2001. He also quoted what Datuk Shaikh Daud had said that it used to be that tinting of judges' cars is for security reason, but now it is to hide their embarrassment.
He also referred to the recent statement by the Suhakam Chairman, Tan Sri Abu Talib who said the courts have failed to interpret the constitution.

The most damning evidence of the deteriorating state of judiciary, he said, actually came from Nazri himself.

Zaid elaborated that on April 11, Nazri was reported to have said that it is in his opinion that the government requires the setting up a commission to study the question of conversion so that these conversion cases can be settled in the extra-legal manner especially when children are involved.

Replying to Karpal Singh on the Lina Joy case, Nazri said the decision is difficult to make as it is very sensitive and we have to consider the consequences. If it is made in the right decree, the acceptance may be difficult. Zaid also quoted Nazri as saying a judge of certain faith will be labelled biased if he makes a decision favouring that faith.

"What does it say? That the government itself is not sure if our courts were to decide according to law, which they are supposed to do, there may not be acceptance? There may be serious consequences?" Zaid asked.

He said he was not trying to belittle the remark, but it just goes to show that Nazri himself is concerned about the acceptance by the public of the court's decision on sensitive cases.

But Zaid said one cannot run away from making decisions by constitutional means when already we have already taken away so many things from the courts.

If there is a conflict between political parties or among themselves, under the Societies Act, you can't go to court now. That has been taken away. Zaid also said judicial review has been taken away and you have to decide what Federal law prescribes, adding that Article 121 has been amended to remove judicial powers from the hands of the judges.

"If we take these sensitive cases away from the courts too, what is there left for the judges to do?" he asked.

" We have to face the hard facts. We are not the only country or society which have difficult cases or issues to deal with. But in all those countries where there is democracy and stability, "Zaid said.

" The courts have that role to play and people accept the difficult decisions made the courts, citing the controversial case of excavating the Babri mosque in India where the decision of courts saved the day for India. In America, the Supreme Court did not shield President Nixon when Justice Warren Burger ruled that executive privilege does not protect or hide the president's wrongdoing. Similarly, the US Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) on the constitutionality of segregation laws, saying we have to be equal as we cannot be separately equal. "

" Judges are therefore a different breed of people. If the public have confidence in them, they can bring stability to the country.

"In this country, there is an extremely lack of confidence in our judiciary."

He alleges that the government has no confidence too and that is why they are keeping a closed eye.

Zaid went on to stress that the arguments for commission are so compelling. He said when he went to the elections in 2004, his constituency believed him when he said this government would fight corruption and go for accountability and transparency.

He said, if this government can show this commitment by just establishing a way we select and promote judges and restore the people's confidence in the judiciary, the government will go a long way in fulfilling a part of our promise to the people.

Nazri spoke AGAINST the proposition

Nazri said what he (Nazri) was going to speak is nothing new - it is a system which has been practised for the last 50 years.

Dealing with the conversion cases first, Nazri said it is not about people not having confidence in the judges. It is all about Article 121. He said in this country, whenever one of the parties happens to be a Muslim, the judges have no discretion except to decide that the case has to go to the Syariah Court.

"The problem is with Article 121, and not because people have no faith in the judges", stressed Nazri.

"Why I said the Commission (proposed special commission for religious-sensitive matters) has to be set up to look into this is because matters like this are personal, emotional and controversial and whatever decision should not be made public", said Nazri.

In the Subashini case, he was of the opinion that the children should be given back to the mother.

"When they got married, they were Hindus and that there was a constructive agreement that any children born in the marriage would be brought up as Hindus. But suddenly he converted to Islam and took away the two sons from the mother and he wanted to convert the sons to Islam too.

"This is not fair. If you take this matter to court just because one of the spouses is a Muslim, the Federal Court has no decision but to say that this is under the jurisdiction of the Syariah.

"That is what I said it should be extra legal. Once it is decided on legal matters, it is a goner for the wife. This is what I meant,"
said Nazri adding that it is not because he has no confidence in the judges but because he felt for the good of the children.

He said that explains the need for the commission consisting of chief priests of every religion, probably with the Sultan, being the head of the Islamic faith in every state, as the Chairman.

"Let them decide extra legally and there is no need to reveal. Justice can then be done without taking the matter to court. The moment it is taken to court, Article 121 will come into play," said Nazri.

Having said that, Nazri emphasised that this is a system we have for a long time since independence. He said there were no complaints during the years after independence in the 60s and 70s. It is the same system, and he said everybody was happy then.

But today we are more vocal, forthright and and not afraid to say our piece. So, of course, there is some unhappiness with the appointment of judges. But that is not because of the system, Nazri said it is because of individuals. In this instance, he asked why must we throw away the system when one may not be happy with the choice made by the Chief Justice.

He went on to ask what if we are not happy with the choice made by the commission.

"Are you telling me that everyone is going to be happy with whatever decision made by the commission? No way. You cannot get 100% approval from the public", said Nazri.

Nazri said it is a question of choice of the public. But Nazri said it is not true that it is the choice of one person. If one looks at the Constitution, Nazri said appointment can only be made by the king on the advice of the Prime Minister after consulting the Chief Justice and the Conference of Rulers.

He said if one knows the system, one ought to use the system. It is not just one person - the Prime Minister, the king (even though he acts on the advice of the Prime Minister), 9 Malay Rulers and the Chief Justice. So, there are actually 12 important people who are responsible for appointing the judges in the courts.

"If that is an easy thing for the Chief Justice to do, I am asking you why until now the Chief Justice is not able to appoint the successor to Tan Sri Siti Norma Yaakob who retired on 5 January this year as the Chief Judge of Malaya," he asked.

"If it is so easy - if you think that the Prime Minister will just accept any name given by the Chief Justice, if you think the Malay rulers would accept any name given by the Chief Justice, then her successor would have been appointed", said Nazri.

"Why? Why?", Nazri asked, revealing that there are difficulties at the moment.

"Because there are clever people who don't attack the system. They look at the system, and they went direct.

"Some to the Prime Minister, some went to see the rulers and gave their opinions. That is why until now the Chief Justice has not been able to appoint because it is not what you say a smooth ride. Because the names given by the Chief Justice - one or two - probably I do not know - not accepted by the Malay rulers. I do not know. May be the Malay rulers asked for more names or may be the Prime Minister wants to see more names, not just one or two which the Chief Justice has given to him," Nazri added.

So, Nazri said this is the system, and one can always see the Prime Minister. If there is anything wrong, Nazri said, it is because of the individuals.

"If in the past, the judges elevated were not prominent people, then probably, I do not know, the Prime Minister then was not too concerned about the judiciary. I do not know," said Nazri.

"But I do know that the present Prime Minister takes things seriously. He just does not accept any name given by anybody, even from me", said Nazri.

Nazri related that when he had a few appointments to be made to certain boards, the Prime Minister had asked for more names when he gave him the names.

"Here, what I am trying to say is that it is not system. Even if we have the commission, what if the individuals are not up to our expectations?

"As I have said, they can also do things which we may not be happy about. That is why what we are thinking about is not to change the system.

"The system has served us well for many years. You mentioned various names - whether they are in the executive or judiciary. Actually, the problem is the individuals. So, you don't like what the individuals did and so you want to change the system to the new system.

"And in the system, there are still things you are not happy with, like things done by the commissioners. So, let us change another system? I am saying here it is not the system. The problem is the various individuals who hold the posts.

"In my opinion, because it is the individuals, we must be smart enough to use the system. As I have said, you can always go and see the Prime Minister or the Sultans and give your opinions. They will listen to you. That is why today after 4 months, the Chief Justice is not able to appoint the CJM, probably because there is a problem with the names of the nominees given by the Chief Justice," Nazri said.

Therefore, Nazri said it is the right of the Bar Council members and lawyers to go and see the Prime Minister.

He went on to say it is not fair to talk about the independence of judiciary and independence of the 3 branches of government if in Parliament, the Leader of the House has the right to appoint anyway he likes and the Prime Minister is given the liberty to appoint the cabinet ministers. Why should similar right not given to the Chief Justice?

"I think we have not been fair to the judiciary. If we allow the Leader of the House and the Prime Minister to do it, and when it comes to the judiciary, we must have the commission, I think it is not fair," said Nazri.

He asked how independent can the commission be when we talk about constitutional monarchy in this country. They will always be beholden to somebody.

"Where do the judicial commissioners come from? If they say they come from heavens or God has appointed him, then they are independent. But in this country, the king is not an absolute monarch.

"I find it difficult that we can actually have a commission which is really independent, independent in the sense that we all want and understand.

"In my opinion, the system shall remain as it is. What is important here is to convince me is true like what Zaid said. I still need to be convinced. But no problem. Even then it is not important whether I am convinced or not.

"I think the person you should have called to appear here is the Chief Justice. Not me", said Nazri.

Nazri said he hoped when we talk about the independence of the 3 branches of the law, we do not talk with forked tongues.

"In one instance, you will accuse me Nazri from the executive interfering with the judiciary the moment we have the commission.

"I do not want people to be hypocrites. If we say we want the judiciary to be independent, we must practise it. And I intend to practise independence of the judiciary from the executive.

"I intend to do it. For as long as I am the Minister, I want to stand up with confidence in Parliament to say that the judiciary is independent.

"But if today I agree with you and I would start the motion to have this - I go back to the cabinet and convince the cabinet members and then we have a bill for this commission - then I think it is the executive interfering with the judiciary', Nazri said this at the end of his speech.

Zaid replies

In reply, Zaid said he had difficulty at the conceptual level.

"Let us talk about independence. Surely, if you table a bill, Sir, tomorrow in Parliament setting up the commission, how could that be interference?

"Only a couple of months back or last year, we submitted a bill on the retirement age of judges and it comes from the government, how can you construe that as interference?" asked Zaid.

Zaid went on to say: "As the government, you are responsible for a lot of things, including the state of the judiciary. If you find something is not right, it is incumbent upon you to change it. That is not interference in the way that you mentioned, Sir. Interference there will be like this: Let us say one Lord President who said we wanted to have 9 judges hearing this case, and you don't like that and you sack him, then that is interference!"

Zaid said another example would be like a high profile case coming up involving a celebrity, one judge had been fixed for the case and suddenly another judge had been asked to hear it, then that is interference.

"Then people will ask why. But if you do it for a good reason, and we have plenty, then that is not interference", said Zaid.

As regards Nazri's assertion about the appointment of the Chief Judge of Malaya, Zaid asked why is it so difficult. He said it is exactly his point that the process must be clear as the appointment of the Chief Judge is a very important position for the country.

"So for all you know, our present Chief Justice must have given a name which is not acceptable for a very good reason. That would not happen if we have a transparent system and if we have a proper vetting process.

"What you are asking us to do is to be involved in jockeying for positions which we are not good at. It shouldn't be for jockeying for positions. This is a position of honour.

"We shouldn't be going and say I want the job or I want so and so to get the job," said Zaid.

Zaid said this is the proposal to help the government so that no one would tell you stories because like in England, India and Australia most of the judges were practitioners. Zaid said the Prime Minister is not expected to know all these details and so the Conference of Rulers.

"And I am sure the Chief Justice who is very busy, I mean the matter of writing judgments was raised in Parliament and obviously he is very busy, how do you think he will get the right man?" asked Zaid.

He agreed that of course there is no assurance or guarantee that even this commission would be "independent", but he said he would worry for the country if there is no such thing.

"But this is what is happening. There is this mega superpower in control of everything in our lives and in the organs of government and this is worrying," charged Zaid.

Zaid added that we must strive if we believe in democracy, in freedom and rule of law and that there must be checks and balances and power and authorities must have limits. He said we do not need to be very wise to understand this, adding that judges are there to make sure, to the best of their ability, to provide that guidance and protection on the limits.

Of course, he said Julius Caesar, many rulers and people in power would not agree with this because power is very addictive. It gets better as it gets a lot more. He said that is why the founding fathers of this country have this in the constitution about fundamental liberties, freedom and that judges must be selected with care because they are guardians of these and nobody else.

He recalled the words of Justice John Marshall in the early years of the American Independence that the greatest scourge the heavens ever inflicted on an ungrateful and sinning people is to give them a judiciary which is corrupt, ignorant and dependent.

"I pray that we do not have that kind of judiciary", said Zaid, adding that we have to fight for this and make sure that in this country, the rule of law prevails and not discretion.

Zaid said he would be worried if it is the Prime Minister who decides the list.

"Of course, the Constitution is like that. The Chief Justice refers the list to the Prime Minister, but that is just formality.

"The actual practice in the democracy is that the real list comes at the level of the judiciary because they know best. Can you imagine if the Prime Minister selects our judges?" asked Zaid.

But we cannot have that, Zaid said because we must have limits to authority.

We cannot have a government ruled by law by whatever said by the executive. That is why, Zaid said, we must believe in independence and separation.

Finally, Zaid said while he understood why Nazri wanted to include some extra judicial means and process and religious teachers in sensitive cases, a grievance is still a grievance.

"An aggrieved party will always come to court because that is the last place.

"So, we can do all those commissions and sub-bodies or whatever you call them, when I said you must have confidence in the judiciary, you must believe that the judges we selected have that capacity, wisdom, knowledge and the understanding of the law to do justice in every case that comes before them."

Zaid concluded by saying, that is why, this process of appointment of judges is so fundamental and crucial.

Nazri responds to Zaid

Nazri said the bill he tabled in Parliament with regard to the remuneration of judges was not interference but only a matter of procedure. He added that it was agreed by the judges and he was only the postman going to Parliament to comply with procedure.

"The judges are not members of Parliament. They cannot come to Parliament and say they want their salaries to be increased. That is not the way. And because I am the Minister in charge of law, I merely, as a humble servant, did this because of procedure. The remuneration and the quantum were agreed by the judges", said Nazri.

"Of course, if you have the commission, it cannot just happen like that. It has to go through procedure, through Parliament again and humble servant Nazri will do it again. It is just complying with procedure as required by the Constitution", added Nazri.

With regard Idid, Nazri said he was found to be unfit, not because he pointed out his fellow judges. Idid was found naughty because he wrote the flying letter. He did not come forward to say that he had made the accusation with knowledge of the facts. So, he was discovered, and it is uncalled for a judge to do that to his fellow brothers.

Nazri said it was not only investigated by the Attorney General, but also by the ACA. As the allegations were found not to be true, Nazri said Idid had to go.

With regard to the commission and what Zaid said it is not the nature of lawyers to jockey for places, Nazri argued that even if you have the commission, you still have to jockey for positions with the commissioners. Nazri added that there is no law that says you cannot go and see them.

"Jockeying will still be there. As long as there are humans in the commission, there is still going to be jockeying. So what I am going to say here is - to use the system.

"If you are talking about transparency, I would tell you the transparency is only in relation to the commissioners. The commissioners will not be allowed to tell the public what they have done because it will still be official under the Official Secrets Act.

"It is the same. So let us not kid ourselves. Don't scold me for this. It is in the Constitution. It is a convention. It is a practice. I was not responsible for the Constitution. I was merely playing the game in accordance with the rules laid before I became minister.

"So if you think that you cannot go through me, it is probably because I have played the game well. It is not my fault. You cannot be angry with somebody who has played his position well", said Nazri.

Nazri went on to argue that "if you should be angry, you should be angry with our founding fathers".

"They were the ones. It has been 50 years now. Let me tell you we have been a peaceful and stable country because of the Constitution. We see countries like Thailand and Burma re-writing constitutions. Why we are still functioning as a country is all because of what we have in the constitution", said Nazri.

Nazri said he does not agree with Zaid's assertion that lawyers are the ones who know the ability of the persons who were elevated to become a judge. It means, Nazri said, that the potential judges must play to the gallery, to be nice to the lawyers otherwise you would not support them.

"I am a very frank person. I am telling you straight in the face.

"If today you don't trust the Prime Minister, at least the Prime Minister before he becomes the Prime Minister, he has got to go through many stages. Zaid knows - must be a Ketua Bahagian UMNO first, then call a meeting to be mandated as a candidate, have to stand for election and get the electorate to vote you, after that Parliament will elect you as the Leader of the House and then only you become the Prime Minister.

"He has to go through 5 stages, and so how can we say that he hasn't got the mandate to decide. That is the system and I am sure if he abused the system, he will not be there for long", argued Nazri.

But, Nazri said "if I want to be a judge and I have to please all of you, then I have to play to the gallery."

"I have to become popular because I need your support to become a judge. And what mandate do you have? You don't have any mandate compared to the Prime Minister.

"And because of that I still feel it is not wrong for the Prime Minister to make some decisions as was given to him by the Constitution because he is duly elected by the people and he has got the mandate. And if he does anything wrong, then he will have to face the consequences."

Speakers from the floor (Click here for more)

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