As a result of the worsening crisis of confidence in the independence, impartiality and integrity of the system of justice since 1988, the time has come for an intense scrutiny of the process of judicial selection as the quality of justice in any society is very much dependent upon the men and women selected to occupy the seats of judgment in that society.
Malaysia urgently needs a more transparent process of judicial appointment to ensure that the justice administered by the judges will undoubtedly be of superior quality because they are professionally qualified, persons of integrity and good character, independent and courageous.
The present system, where the judicial appointments are decided by two
persons, the Prime Minister and the Chief Justice, is most unsatisfactory.
The flaws of the present judicial appointment process includes:
Many Commonweath countries have carried out reforms to modernise their system of justice as in the introduction of transparency and competition in the judicial appointment process.
Malaysia can benefit from the reforms introduced by some of these countries, such as:
In 1986 Canada held a national conference on judicial neutrality resulting in Judicial Appointments Advisory Committees being established in each province. Each committee comprised judicial and legal representatives and non-lawyers.
Since 1988 each Minister of Justice has exercised his or her power of appointment subject to a self-imposed voluntary restraint whereby the choice is confined to those approved as suitable for appointment by the committee.
An applicant is required to submit a full written application to the committee who categorise the applicants as "highly favourable", "favoured", or "not favoured". The Ministerís self-imposed restriction is that appointments will only be made from the first two categories.
In 1998 New Zealand, in response to criticism that the judiciary was remote and unrepresentative of the community, set up the Judicial Appointments Board. The Board is comprised of representatives from the bench and bar and lay members which makes a recommendation on judicial appointment once a vacancy occurs. The Board advertises the judicial position and reviews all applications. A ranked list of at least two candidates is then given to the Attorney-General, who makes the final recommendation to the Governor-General.
The Board must conduct the advertising and review process in accordance with criteria established by the Board, including an assessment of the professional excellence , community awareness and personal characteristics of candidates and recognition of the desirability of recognising the cultural diversity of New Zealand Society in judicial appointments.
In 1997 the United Kingdom defined and made public the criteria against which candidates for judicial appointment would be judged and the selection process by which they would be appointed.
All judicial posts up to and including the level of Circuit Judge are advertised in national newspapers. Applicants are required to submit a written application addressing the selection criteria.
It is a central feature of the appointments system that views and opinions about the qualities and work of applicants are collected from a wide range of judges, senior practitioners from both branches of the profession and others, as appropriate, by officials on behalf of the Lord Chancellor.
For all appointments, selected applicants are asked to attend a formal interview. Selection for interview is made by the interview panel on the basis of each candidate's application form and the results of the consultations. The comments received through the consultation process help to inform the interview panel; but the panel members - usually a serving judge, a senior official in the Judicial Group, and a specially selected and trained lay member - make their own assessments by asking questions which test the required criteria during the interview. The Lord Chancellor then makes a recommendation for appointment of a particular candidate.
With so many countries which have carried out reforms in the modernisation of their system of justice, including the system of judicial appointments, there should be no lack of reference materials for Malaysia to undertake its own reforms of our justice system.
As a first step, Rais should convene a National Conference on Judicial Independence and Accountability to be attended by representatives of the judiciary, the Bar and the civil society to finalise proposals for a new system of judicial appointments to ensure transparency and a top-quality judicial system.