Malaysia should invite International Commission of Jurists (ICJ) to send a mission to Malaysia to verify whether the recent spate of judicial appointments and promotions comply with the United Nations Basic Principles of Independence of the Judiciary
by Lim Kit Siang
(Petaling Jaya, Saturday): When defending the controversial judicial promotions to the Court of Appeal and Federal Court on Thursday, Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim dismissed allegations that two High Court judges who convicted former Deputy Prime Minister Datuk Seri Anwar Ibrahim for corruption and sodomy were “rewarded’ with promotions as “baseless” and said that the elevation of four judges to the Court of Appeal and Federal Court respectively were based on many factors which include “ability, integrity, experience and social conduct”.
He said: “There are so many factors to be taken (into consideration) and we have considered every factor that we can think of before we promote them.” (Malaysiakini)
As Ahmad Fairuz said there are “so many factors” to be taken into consideration in deciding on the promotion of judges, he should not only be fair to the judges but also to Malaysians and uphold the principle of judicial accountability by listing every single one of these factors, and not just refer to the four factors of “ability, integrity, experience and social conduct”.
To a question that “some members of the Bar Council felt that some of the five most senior judges are as competent as those promoted”, Abdul Fairuz said: “Well, the lawyers judge from their angle but as the chief justice, I judge not only on the angle of the lawyers who only knows the judge when they go to court. I know the judges more than that…I also know about their personal life.” (Malaysiakini 24.7.03)
This is a very disturbing answer, as the Chief Justice seemed to suggest that some of the senior judges were by-passed in the promotion exercise because of their “personal life” – which raised the question whether a judge whose personal life is not “judicial” enough to be considered for promotion should even continue to hold any judicial office!
Abdul Fairuz quoted Principle 13 of the United Nations’ Basic Principles of the Independence of the Judiciary to ward off criticisms that the judicial promotions had not properly taken seniority into account, claiming that Principle 13 on promotion of judges made no mention of seniority, only ability, integrity and experience.
I agree with the Chief Justice that seniority cannot be the sole criteria for judicial promotions or for any other promotions in the public service so as not to have deadwoods, but it cannot be disregarded as an important factor.
Ahmad Fairuz had misunderstood Principle 13 of the UN Basic Principles of the Independence of the Judiciary, which specifically mentioned the three factors of “ability, integrity and experience”, as the factor of “experience” must be read to embed the criteria of “seniority”. Furthermore, the three elements of “ability, integrity and experience” are mentioned as “objective factors”, which means they must be able to withstand public scrutiny and not just “subjective factors” to satisfy one or two persons.
Principle 13 reads: “Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.”
The Chief Justice had also not fully understood the Basic Principle on the Independence of the Judiciary, in particular Principle 10 which reads:
“Qualifications, selection and training
“10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”
As Ahmad Fairuz had fallen back on the United Nations’ Basic Principles on the Independence of the Judiciary to defend and justify the latest spate of controversial judicial appointments and promotions, Malaysia should invite the International Commission of Jurists (ICJ) to send a mission to Malaysia to verify as to whether the judicial appointments and promotions comply with the United Nations Basic Principles of Independence of the Judiciary, in particular Principle 10 against “judicial selection…for improper motives” and Principle 13 on the “objective factors” of judicial promotion, in particular “ability, integrity and experience”.
The Chief Justice should communicate his support for such a ICJ mission to Malaysia to the Cabinet, which should set in motion the dispatch of such an invitation to the ICJ.
* Lim Kit Siang, DAP National Chairman