The appointment of Malaysia’s highest and most powerful judge - the chief justice of the Supreme Court - has been politicised since the 1988 judicial crisis was instigated by Dr Mahathir Mohamad’s determination to tame the third branch of power and make it submit to the executive.
"The chief justice should be selected by the outgoing one, with input from the prime minister. The system works. It is the undue influence of particular individuals that jeopardises the process and reduces the integrity of the appointment," said former supreme court judge Azmi Kamaruddin (above) - one of the five judges sacked during the crisis.
Therefore, the appointment of the next chief justice to replace Abdul Hamid Mohamad - who is retiring on Oct 18 - is being watched closely by many people. Despite various members of the judiciary - lawyers and judges - differing on how the chief justice should be selected, overwhelmingly they agree that the executive should have little influence on the choice of chief justice.
Prime Minister Abdullah Ahmad Badawi - with his decision to step down in March - has the opportunity to either take Malaysia down the path of reform with a choice that would please those in the judiciary. Or he could attempt to win party gratitude by appointing Umno’s former legal adviser, Zaki Azmi (right).
Zaki - the president of the Court of Appeals - is next in the pecking order and the likely candidate for the job.
"It is imperative that the chief justice be a person who is widely perceived to be above and independent of any political alliances or influences," said Ambiga Sreenevasan, president of the Bar Council.
She added too that though present positions of candidates in the judiciary mattered, seniority in terms of years on the bench cannot be ignored, a clear reference to Zaki, who was ushered to his present position in Nov 2007. It was a move that leap-frogged him ahead of many other qualified judges, so that he would be in line for the position of chief justice when it became available.
Parliament debate on suitability
If the Umno man was chosen said DAP advisor and Ipoh Timur MP Lim Kit Siang, the opposition would call "for a full parliamentary debate on a substantive motion into his suitability and qualification based on a scrutiny of his conduct and public record, particularly as Umno legal adviser, chairman of the Umno election committee and deputy chairman of Umno’s disciplinary board of appeal".
PKR vice-president and senior lawyer, R Sivarasa, shared this concern as he argued that there was an issue of perception when it came to Zaki.
"Zaki is carrying baggage from his Umno past, and there are also some controversies arising about his personal life.
"Better choices would be justice Abdul Aziz Mohamad or Affifin Zakaria, both from the Federal Court. They have seniority over Zaki, and don’t carry with them any political baggage," said Sivarasa.
The PKR man, however, disagreed with the outgoing chief justice having the discretion to select his successor, instead preferring the setting up of a judicial appointment commission as a long-term solution for future appointments.
The Conference of Rulers will be meeting in Kuala Terengganu on Oct 15 and 16, where they could possibly endorse a choice for the position.
Article 122B of the Constitution provides that the chief justice shall be appointed by the Agong, acting on the advice of the prime minister, after consulting the conference of rulers.
Rulers play a role too
"We have in the past seen some very bad appointments to the office of the chief justice," pointed out Param Cumaraswamy, former UN Special Rapporteur on the independence of judges and lawyers.
"There were instances where the chief justice colluded with the prime minister to undermine its very independence. This should be avoided in the present exercise of appointing the new chief justice," stressed Param.
On the role of the conference of rulers in the matter, he explained that they "should not be seen as a rubber stamp of the executive’s choice but actively seen in choosing one with proven competence, integrity, courage and independence".
There was optimism that Abdullah would pick the right man for the job.
"Because he is leaving, he is more likely to be bolder in his decision," said lawyer Edmund Bon (right).
"So he will do what is best for the judiciary, not necessarily the party he will stop leading soon."
Either way, the appointment of a chief justice for the Supreme Court is likely to be one of the key decisions made by the Abdullah administration in its final stretch in offic - Malaysiakini.com
There should be a system in Malaysia where the Parliament and the Senate has to approve of the next Chief Justice, just like in America. The prerogative of the executive branch, let alone only the head of the execute branch is not enough.
I suppose we do have a Yang Dipertuan Agong, which acts as a check and balance to the powers of the PM, but the approval of Parliament and Senate is still desirable.
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