Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim is once again reported in the media defending his process of selection and recommendation for judicial appointments and promotions for the higher judiciary in the country. The flaws in the Malaysian system can be gauged from first examining the role of the judiciary and its judges in a democratic state, the international and regional standards for judicial appointments and drawing from some experiences in other countries in the selection and appointment process.

Role of the judiciary and its judges

The principle of separation of powers in government is the bedrock of a democratic state based on the rule of law. The judicial power is one of the three powers of a democratic government. It is pursuant to this power that justice is dispensed in disputes not only between citizens and citizens but also between citizens and other government organs and agencies, including disputes between states in a federation. Hence the need to vest this judicial power in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influence in order to secure its independence and impartiality.

Judges are standard setters in society. They interpret and develop the law upon which society is structured and human relationships are conducted. Their actions and conduct, both within and outside the court, must at all times be above suspicion and be seen to be so if they are to command public respect and confidence. Suspicious conduct of one or two judges is enough to tarnish the image of the entire judiciary. It follows that those appointed to this high position of esteem and respect must be only men and women with proven competence, integrity, probity and independence.

There should be no compromise on these standards. Judges appointed for lesser qualifications or for other considerations, political or other wise, would eventually bring disrepute to their own institution.

What should be an ideal mechanism for judicial appointments is a subject of some debate. Traditionally, constitutions provide that such appointments are made by the head of state upon the advice of the chief executive of the government, who in turn consults the Chief Justice. Many Commonwealth constitutions provide for such a procedure. To provide for more transparency and accountability, modern constitutions provide for an independent mechanism like a judicial service commission to advise the chief executive of the government.

International and regional standardsPrinciple 10 of the UN Basic Principles on the Independence of the Judiciary provides, inter alia:

>> those 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.

The Beijing Statement of Principles of the Independence of the Judiciary in the Asia Pacific Region 1995 adopted by no fewer than 32 Chief Justices in the Asia Pacific Region, including the Chief Justice of Malaysia, provide the following, among others, for appointments and promotions of judges:

The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account, so that only persons of competence, integrity and independence are appointed.

In some societies, appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means to ensure that those chosen as judges are appropriate for the purpose.

Where a Judicial Services Commission is adopted, it should include representatives of the higher judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalised and information about them should be available to the public.

Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.

The 1998 European Charter on the Statute of judges, provides, inter alia: "In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the Executive and Legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representative of the judiciary."

In essence what is expected is that appointments are based on merit and there should be no appointments made for political or other improper considerations. Selections and appointments should not only be made independently but must be seen to be so.

Experience of other countriesSome cases on procedure for judicial appointments decided by the Indian Supreme Court in the last 15 years are pertinent. The Indian constitution provides for the appointment of judges by the president after "consultation with the Chief Justice of India".

The president being a constitutional head, the consultation process is between the Executive and the Chief Justice. In a 1993 case the court held that "consultation" in the context must be genuine and not a sham. When there is a conflict between the opinion of the executive and that of the Chief Justice, the opinion of the Chief Justice should prevail.

By this judicial interpretation, the Supreme Court in effect removed the power of judicial appointments from the executive and vested it in the Chief Justice.

Controversy thereafter arose whether the power can be vested in just one person like the Chief Justice or should it require consultation with a plurality of judges in the formation of the opinion of the Chief Justice. In 1998 the President of India referred this and other doubts caused by the 1993 judgment back to a full bench of the Supreme Court without the Chief Justice.

In a detailed decision the Court held that "the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion".

Thus the Indian Supreme Court in its interpretation of the expression "consultation with the Chief Justice of India" in the constitution read into the constitution not only that the Chief Justice's opinion must be a collective opinion formed after taking the views of his senior colleagues but also that when that opinion conflicts with that of the Executive, the opinion of the judiciary "symbolised by the view of the Chief Justice of India" should have primacy.

Soon after the 1993 decision of the Supreme Court of India a similar issue arose before the Pakistan Supreme Court.

The constitution of Pakistan too had such a provision for consultation. Following the 1993 Indian Supreme Court decision, the Pakistan Supreme Court removed the power of judicial appointment from the executive but with a qualification. The Pakistan court held that if the Executive refuses to accept the opinion of the Chief Justice then the executive should give its reasons in writing, thus calling for transparency.

On this issue of consultation process, another case arose in Belize (formerly British Honduras) in 1998 when one morning the then Chief Justice found that he lost his office by way of an order of court made by a High Court judge.

S.97(1) of the Belize Constitution provides as follows: "The Chief Justice shall be appointed by the Governor- General acting in accordance with the advice of the prime minster given after consultation with the Leader of the Opposition."

S.129 (2) of the same Constitution provides the definition of consultation: "Where any person or authority is directed by this constitution, or any other law to consult any other person or authority before taking any decision, or action, that other person or authority must be given a genuine opportunity to present his or its views before the decision or action, as the case maybe, is taken."

A controversy arose as to whether there was a genuine consultation with the Leader of the Opposition prior to the appointment of the then Chief Justice.

A lay litigant who had proceedings before the court challenged the constitutional validity of the appointment. The Court after examining the facts found that there really was not a consultation as provided under Section 129 (2) of the Constitution. A letter written by the prime minister's office to the Leader of the Opposition on the particular appointment was responded by a request for a meeting to discuss the proposed appointment.

The prime minister ignored the proposal and recommended to the Governor-General the appointment without meeting the Leader of the Opposition. The Governor-General duly made the appointment. As such the court found that there was no consultation and ruled the appointment unconstitutional and therefore null and void.

Datuk Param Cumaraswamy is a former president of the Malaysian Bar.

• A global view of judicial appointments