Saturday 11 August 2007

Judicial Appointment Stand-Off: Updates on the Evolving Constitutional Crisis


The Conference of Rulers in a rare move has rejected the government’s choice for the position of Chief Judge of Malaya - the judiciary’s No 3 post.

Sources in Malaysia’s legal community say, an unnamed candidate was picked (by Govt) over THREE MORE senior judges
. Read here for more and here

  1. Malaysian Bar Council's Reponse to the Constitutional Crisis. Read here

  2. ".. Bar Council president Ambiga Sreenevasan stressed today the Federal Constitution stipulates that the rulers were a party to the appointment process of key government posts because they MUST be consulted and the Conference of Rulers should NOT treated as 'rubber stamps' in the appointment of top judges.

    " The consultation has to be meaningful" said Ambiga when contacted by malaysiakini.

    She added that the role played by the rulers was important as it was a form of check and balance.

    Ambiga was asked to comment on Chief Justice Ahmad Fairuz Sheikh Abdul Halim's claim that the rulers' opinion was not binding on the prime minister.

    Describing the lengthy vacancy as “undesirable”, Ambiga said the situation could have been avoided and it justifies the formation of a Judicial Commission which the Bar Council - a professional body representing the nation's 12,000 lawyers - had been lobbying for.

    Retirement is something which one knows about in advance, thus there should be little excuse as to why a candidate could not be decided upon earlier,” she said.

  3. Comments from PAS and MCA: Read here

    MCA Youth legal bureau chief Gan Ping Sieu described the multi-faceted consultation process in such appointments as an integral part of the decision making process to ensure that the most competent person may assume the posts.

    His Majesty the King consulting the Conference of Rulers is part of the essential constitutional process. We trust that all the consultants are men of utmost integrity and bearing the nation’s best interest in mind,” said Gan, a practising lawyer and also Mengkibol state assemblyperson.

    Meanwhile, PAS vice-president Husam Musa said Ahmad Fairuz’s comments gave the impression that Abdullah would be going ahead with his candidate even without royal assent.
    “This should not happen. It is as though (Ahmad Fairuz) views that the rulers opinion were not important in getting the Prime Minister to reconsider. If not, it would cause serious implications towards the balance of political power in the country in the future. This must be avoided,” said Husam when contacted.

    He said the principle of consulting the rulers must be upheld and that their influence on the prime minister must not be diminished.

  4. No time limit for King to Say Yes: Read here for more:

    "...under Article 40 (1) of the Federal Constitution the King was bound by the Prime Minister's advice, yet at the same time the King must show respect to the views of the Conference of Rulers.

    There is NO time limit for the King (Yang di-Pertuan Agong) to endorse the appointment of the Chief Judge of Malaya, according to constitutional expert, Prof Shad Faruqi who is Professor of Law at University Teknologi Mara

    There was NO provision in the Federal Constitution to by-pass the King in making the appointment because the letter of appointment MUST come from the King.

    Prof Shad Faruqi said that there were also no sanctions if the King did not follow the Prime Minister's advice on judicial appointments, adding that as this was a grey area, convention and customs must play a role.

    He said that according to the law, the candidate would be chosen on the advice of the Prime Minister to the King, who would then consult the Conference of Rulers.
    “It is only consultation. This means no consent is required and it is not binding.

    So the Conference of Rulers have the right to express their opinions and concerns, if any, but not the right to veto.

    Legally, the Conference of Rulers must give their consent. Consultation does not mean that advice (given by the Conference of Rulers) must be obeyed. ”
  5. Legally, the Conference of Rulers had no right to veto the choice of candidate put before them.

  6. Evolving Constitutional Crisis: Fault of Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim. Read here for more

    Chief Justice Ahmad Fairuz' failure to institute judicial reforms, particularly on transparency and meaningful consultation in judicial appointments, root-cause of the constitutional crisis resulting in seven-month vacancy of Chief Judge of Malaya, third most important judicial office, says Opposition MP Lim Kit Siang.
    " 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, 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".

    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.

    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.

    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 appointment 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. "

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