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

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Media Statement 
by Lim Kit Siang  
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(Parliament, Saturday): The country is faced with a full-blown constitutional crisis over the appointment of the third most important judicial office in the land, the Chief Judge of Malaya, which had been vacant for more than seven months since the retirement of Tan Sri Siti Normah Yaakob on January 5, 2007. 

I first raised the issue of the paralysis of the judicial appointment process for the post of the Chief Judge of Malaya in Parliament during the Royal Address debate in March, and DAP MPs Karpal Singh (Bukit Glugor) and M. Kulasegaran (Ipoh Barat) and I have continued to demand to know why the country is still without a Chief Judge of Malaya whenever there was an opportunity in Parliament in the past five months but without getting any satisfactory answer. 

Under Article 122B of the Constitution, the Chief Judge of Malaya “shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference Rulers”. 

The appointment of the new Chief Judge of Malaya has not been able to get past the Conference of Rulers which have met twice since the retirement of Siti Normah, reflecting the constitutional crisis over the issue. 

When the Prime Minister, Datuk Seri Abdullah Ahmad Badawi, who did not attend the recent Conference of Rulers held at the end of last month as he was on private holidays overseas, was asked about the issue on his return, Abdullah said “he had proposed a candidate and it was now for the Chief Justice to conclude the appointment”. (NST 29.7.07) 

After the Singapore Straits Times reported that the Conference of Rulers at its meeting last month had rejected the government’s nominee, New Straits Times quoted Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim as saying that the the vacancy for the Chief Judge of Malaya is expected to be filled by August 31 and that the identity of the nominee was classified under the Official Secrets Act. 

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, whom I understand is one of the most junior Federal Court judges – 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”. 

I called at the time, which I subsequently reiterated in Parliament, for addressing the flaws of the existing unsatisfactory system, where the judicial appointments are decided by two persons, the Prime Minister and the Chief Justice, viz: 

• Selection and appointment procedure not transparent;
• Consultative process is secretive; and
• There is a lack of appraisal of the candidates against pre-determined criteria

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. 

Yesterday, Ahmad Fairuz said the Prime Minister Datuk Seri Abdullah Ahmad Badawi had the final say on the appointment of the Chief Judge of Malaya. 

He said the Federal Constitution stipulated that the Prime Minister consulted him (Chief Justice), while the Yang di-Pertuan Agong consulted the Conference of Rulers on the appointment.    

He said the opinion of the King and the Conference of Rulers are not binding on the Prime Minister.  

He said: “The ultimate decider is still the Prime Minister because the King acts on the advice of the Prime Minister.”  

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. 

Just to give an example. Recently, Malaysians have been shocked by series of scandals highlighting a deplorable plunge in standards and performance in all departments pertaining to the administration of justice – whether sloppy investigation, sloppy prosecution and even sloppy judicial conduct. 

New Straits Times in a front-page report on 23rd July 2007 “JUDGES FAIL WRITTEN TEST” exposed the numerous horror stories of miscarriage of justice such as the accused languishing in prison just because judges did not provide written judgments and referred to one Federal Court judge with “at least 30 outstanding judgments accumulated from his High Court days that include drug trafficking and murder cases”. 

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.

(11/8/2007)