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Response from Fairuz likening proposal for an independent judicial commission on appointment and promotion of judges as akin to nudity rather than transparency ill-advised, in poor taste and reflect badly on the office of Chief Justice

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Media Statement   
by Lim Kit Siang  
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(Parliament, Thursday) : The response of Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim likening proposal for an independent judicial commission on appointment and promotion of judges as akin to nudity rather than transparency is ill-advised, in poor taste and reflect badly  on the office of Chief Justice. 

Ahmad Fairuz may be unhappy with the proposal of an independent judicial commission to oversee the selection and promotion of judges, but he should realize that this proposal pre-dates his appointment to the top judicial post in the land  and meant to enhance public confidence in the system of justice and  in that context,  there is nothing personal against any personal holder of the office. 

Ahmad Fairuz should not have questioned  the motives of those who had made the proposal, such as the Bar Council and several prominent lawyers, posing the rhetorical question:  "Are we to allow whoever has cases in court and who lost to decide on the fate of judges?"  He ignores the support of retired judges for the proposal. 

While claiming to welcome any memorandum on the proposed  independent judicial commission, Ahmad Fairuz made clear his opposition when he told the New Straits Times in Kota Baru after chairing a meeting with Kelantan judges yesterday: 

"I started (as the Chief Justice) in 2003 with accountability and integrity. We have been transparent.

"But transparency should have its limits. Donít tell me when we are transparent, we have to be nude. That is not transparency, thatís nudity.

"You want everything to be absolute? There is no such thing as absolute freedom or absolute transparency.

"Thatís the way I look at things."  

In the first place,  it is absolutely wrong and  inapt to categorise the proposal of an independent Judicial Commission as an exercise in nudity rather than transparency, especially when this judicial reform had been adopted by other countries such as Canada, New Zealand, South Africa and the United Kingdom. 

Secondly, the proposal for a Judicial Appointments Commission was not made only during Fairuzís  tenure as Chief Justice. 

I for one had been calling for a new system of judicial appointments to ensure transparency, top-quality judges  and a world-class justice system since the nineties Ė ever since the country was plunged into a series of  crises of confidence in the independence, impartiality and integrity of the system of justice lasting for over one-and-a-half decade since the 1988 arbitrary sacking of Tun Salleh Abas as Lord President and two Supreme Court Judges, Tan Sri Wan Suleiman Datuk George Seah. 

My arguments for judicial reforms especially in the system of appointments are as valid today as when I made them since the nineties, viz: 

  1. That Malaysia needs a more transparent process of judicial appointments to ensure that the justice administered by the judges will be of superior quality because they are professionally qualified persons of integrity and good character, independent and courageous; and 
  2. The continuing flaws of the present system of judicial appointment, which depend on the decisions by two persons, the Prime Minister and the Chief Justice, include:
  • Selection and appointment procedure not transparent;
  • Consultative process is selective;
  • There is lack of appraisal of the candidates against pre-determined criteria.

When the United Kingdom introduced a new system of judicial appointments which is open to public scrutiny  in recognition that the confidence of both the public and the legal profession in an independent judiciary is of the first importance, nobody least of all the UK judges objected to the indignity of being subjected to an exercise in  ďnudityĒ. 

Apart from the statutory qualifications for judicial office, two fundamental principles underpin the new UK system of selecting candidates for judicial appointment, viz: 

  • Appointment is strictly on merit.
  • Significant weight is attached to the independent views of members of the professional community (judges and members of the legal profession) as to suitability for appointment.

Chief Justice Fairuz should demonstrate he is reform-minded and not just supporter of reform in rhetoric by leading judicial reforms with a new judicial appointment process which is more transparent and is open to public scrutiny to restore the confidence of both the public and the legal profession in an independent judiciary.

(22/2/2007)     


*  Lim Kit Siang, Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman

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