Wednesday 2 May 2007

Debate on Appointment and Promotion of Judges:Law Minister Nazri's Line of Argument Treats His Audience as Being Stupid

From DISQUIET BLOG: Read here by Malik Imtiaz Sarwar
(Malik Imtiaz Sarwar is a leading Malaysian human rights lawyer and activist and the current president of the National Human Rights Society (HAKAM). Through HAKAM and a coalition of NGOs callled Article 11 (after the constitutional guarantee of freedom of religion) of which HAKAM is a member, he has been actively involved in efforts to promote the rule of law and constitutionalism, particularly in the face of worrying trends of Islamization and race politics in government and wider society. He further actively promotes a civil rights discourse both in and outside court. In August 2006, a poster declaring him to be a traitor to Islam and calling for his death began circulating in Malaysia. )

Read HERE the Report on the Debate organised by the Malaysian Bar Council or HERE

The debate is entitled "There is a need, in Malaysia, to establish an independent Judicial Commission in relation to the Promotion and Appointment of Judges" between De facto Law Minister, Datuk Seri Mohd Nazri Aziz, and the Member of Parliament for Kota Bharu, lawyer Datuk Zaid Ibrahim at the Bar Council Auditorium. The debate, attended by about 220 people, mainly members of the legal fraternity, was moderated by former Court of Appeal judge, Datuk VC George.

EXCERPTS of article by Malik Imtiaz Sarwar : Read Here for more

The debate was, in effect, a non-starter.

Zaid Ibrahim described the judiciary as "hopeless" and arguing that the system was in need of a revamp to ensure independent and competent judges at all levels.

Mohd Nazri Aziz, (de facto Law Minister) was assuming that members of the audience, comprising largely members of the Bar, were STUPID enough to believe the line he was taking. Some of this made the press and I think I would not be overstating things to say that the Minister outdid himself.

The main points made by the Minister, Mohd Nazri Aziz were:

  • the system of appointments is fine. It has been in place since 1957 and has worked well

  • the system has its own safeguards i.e. the choice is not that of one person - be it the Prime Minister or the Chief Justice - as the Conference of Rulers and respective heads of the Judiciary are to be consulted

  • that, if at all, the problem is with the Chief Justice, an individual as opposed to the system

  • parties interested in the appointments process should avail themselves of the opportunity to interact directly with those involved in the appointments process

  • all persons appointed are beholden to the person or authority appointing them. As such, a judicial appointments commission would itself not be independent

  • the Government is satisfied with the Judiciary. The Government has about 98% majority in Parliament. Their view is that of the people. The assertion that there is no confidence in the judiciary is questionable
  • It does not take a great deal of thought to see that the Minister has completely missed the plot.

    What he did, proved the need for a commission. My reasons for saying so are:

    1. Justice must not only be done. It must be seen to be done.

      The Minister appears to have overlooked this fundamental and crucial aspect of the administration of justice. As such, it does not matter whether the Judiciary is in fact doing fine if the public thinks otherwise.

      The Minister did NOT address the serious lack of public confidence. On matters of this nature, the Government does not speak for the rakyat. It must listen.

      Saying, therefore, that the Government is satisfied is not sufficient.

    2. There is a serious question about the independence of the Judiciary.

      Much of what the Minister said reinforces the concern the Judiciary is not independent.

      In particular, the emphasis by the Minister that the Prime Minister is the final authoritative appointing authority (my expression, not his) goes to show that the Executive does play a very big role.

      There is as such no separation of powers.

    3. In the same vein, in saying that the problem members of the public have is with the Chief Justice, the Minister in effect is saying that there is room for personality cults within this most sacred of State Organs.

      This is unacceptable.

    4. There is a serious concern about the lack of transparency and the basis of appointments and promotions.

      The Minister did not address this .

    5. Saying that all persons appointed by another would be beholden shows a total lack of understanding as to how things should be.

      Was the Minister saying that, in applying the same logic, no Judge is independent? One would gather so if the Minister holds true to this point .

    6. The Minister appeared to have LITTLE or NO understanding of the role and function of a Judicial Appointments Commission, nor did he show any interest in the same.

      The Commission would not be the appointing authority, it would merely make recommendations to the appointing authority who would have no discretion in this regard other than rejecting or accepting the recommendations of the Commission

    7. The Minister failed to appreciate his own role and function.

      He is duty bound to uphold the Constitution in letter and in spirit.

      He is duty bound to take into consideration situations which reveal a deficiency in the situation at hand. The Minister referred to the so called 'sensitive' cases (Subashini etc) but went on to blame the law - Article 121(1A) - without pausing to take into consideration the fact that cases of this nature are a recent phenomenon.

      Saying, therefore, that he is satisfied with the performance of the Judiciary and demanding to be convinced of a need for any change to the existing system of appointments is simply NOT good enough.
    It is apparent that the current Government (does) NOT have the political will to effect changes which are beneficial for the country.

    Having considered the role and function of a judicial appointments commission, what reason could there be for not introducing the measure here. That process, if introduced, would result in a stronger and more competent Judiciary.

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