DAP calls for reform of appointment of judges for the re-emergence of “towering judges” who can make a mark in the annals of justice, not only in Malaysia, but also Commonwealth and international judicial history
by Lim Kit Siang
(Penang, Sunday): It is coming to three full months since the retirement of Tan Sri Haidar Mohamed Noor as the Chief Judge of Malaya on November 8 last year, and one of the four most important judicial posts in the country has still not been filled.
If a top judicial post had suddenly become vacant because of the unexpected demise of the occupant, a delay in filling the vacancy is understandable although even in such circumstances, a three-month delay will reflect most adversely on the efficiency, effectiveness and professionalism of the system of administration of justice in the country.
In the case of retirement of senior judges particularly for the four top judicial posts of Chief Justice of the Federal Court, the President of the Court of Appeal, Chief Judge of Malaya and Chief Judge of Sabah/Sarawak, there should be a seamless process of succession without any break where the posts are left vacant for any period, as the dates of retirement of senior judges are known long beforehand, and there should have been forward planning for the filling of the posts.
A three-month delay for the filling of the vacancy, as in the present case for the Chief Judge of Malaya, is completely unacceptable and a black-mark for the system of justice in the country.
In his speech to some 2,000 UMNO leaders yesterday, the Prime Minister, Datuk Seri Abdullah Ahmad Badawi called for the generation of “Malays with towering personalities”, outstanding in the respective fields they embark upon.
Since Abdullah’s first maiden official speech in Parliament after becoming the sixth Prime Minister on 3rd November 2003, pledging to respect the doctrine of the separation of powers between the legislature, the executive and the judiciary, Malaysians have been waiting for the past 16 months for the restoration of what one current Cabinet Minister had described as “the finest hour of the Malaysian judiciary in 1986-1988” – which will lead to a new generation of “towering judges” in the country.
The biggest challenge facing the system of justice today is whether there will be institutional and structural judicial reforms to fully restore public confidence in the independence, impartiality and integrity of the judiciary, starting with the system of appointment of judges.
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.
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. Canada for instance has established a Judicial Appointments Advisory Committee in each province, comprising judicial and legal representatives and non-lawyers. Judicial appointments are confined to those approved as suitable for appointment by the committee.
In New Zealand, in response to criticism that the judiciary was remote and unrepresentative of the community, a Judicial Appointments Board was established comprising 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.
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.
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.
Malaysia must embrace far-reaching judicial reforms, including the system in the appointment of judges, if we want to see the re-emergence of “towering judges” who can make a mark in the annals of justice, not only in Malaysia, but also in Commonwealth and international judicial history.
* Lim Kit Siang, Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman