Lawyers question criteria for promoting judges

Lawyers question criteria for promoting judges

BY V. ANBALAGAN, ASSISTANT NEWS EDITOR

Malaysian Insider
September 30, 2013

Bar Council president Christopher Leong says the Bar's views on the latest promotions were not sought. – The Malaysian Insider pic, September 30, 2013.Six top judges are slated to be promoted to the Federal Court and Court of Appeal today against a backdrop of unhappiness in Malaysia's Bar Council for not being consulted on the latest judicial appointments.

The Bar Council is unsure whether these judges are being promoted on merit or seniority. In today's promotion, Court of Appeal judges Datuk Seri Abu Samah Nordin, Datuk Ramly Ali and Datuk Seri Mohamed Apandi Ali will be elevated to the Federal Court.

High Court judges Datuk Seri Zakaria Sam, Abang Iskandar Abang Hashim and Datuk Umi Kalthum Abdul Majid will be promoted to the Court of Appeal.

The council, which covers all lawyers in West Malaysia, also feels it should have been consulted as it is an important stakeholder in the administration of justice in the country.
One view is that it harked back to 1988 when the dismissal of then Lord President Tun Salleh Abas sparked a judicial crisis.

"There was no communication due to bad relationship between the (Bar) council and the judiciary then," past council president Ragunath Kesavan told The Malaysian Insider.
Current council president Christopher Leong when contacted said neither his nor the council's views were sought this time.

"I am only invited to attend the oath taking ceremony for the judges at the Palace of Justice in Putrajaya tomorrow (Monday)," he told The Malaysian Insider yesterday.

In previous years, the chief justice made it a point to consult the council on the appointment of federal and appellate court judges.

Leong's immediate predecessor, Lim Chee Wee, who held the post from 2011 to 2013, said the chief justice had sought the council's feedback when appointments and promotions were made.
Ragunath (left), who was council president between 2009 and 2011, said then chief justice Tun Zaki Azmi consulted him before the Judicial Appointments Commission (JAC) discussed the elevation of judges.
"Whatever reservations some may have about Zaki, he displayed respect for the council and did not ignore us even after the JAC was set up in 2009," he said.
"This time around the legal fraternity is wondering whether judges were promoted based on merit or seniority," he added.

Ragunath also wondered if the failure to obtain the views of the council was a return of the practice soon after the judicial crisis in 1988 following the dismissal of Salleh.

In today's ceremony, the promoted judges will receive their letters of appointment from Yang di Pertuan Agong Sultan Abdul Halim Mu'adzam Shah prior to taking their oath of office before Chief Justice Tun Arifin Zakaria and Court of Appeal president Tan Sri Raus Sharif.

Two senior Court of Appeal judges Datuk Abdul Malik Ishak and Datuk Mohd Hishamuddin Mohd Yunus have been overlooked in the current promotion exercise.

Abang Iskandar and Umi Kalthum have leapfrogged several High Court judges to become Court of Appeal judges.

Abu Samah and Ramly were from the Legal and Judicial Service while Apandi was in private practice from 1982 before he was appointed a judicial commisioner in 2003.

Abu Samah, who has been in the Court of Appeal since 2007, has presided over several cases relating to administrative and constitutional law.

One was that non-Muslim lawyers can practise syariah law in the Federal Territories.

Ramly was a chief registrar of the Federal Court and Registrar of Companies before being appointed judicial commissioner in 2000.
He was made High Court judge in 2002 and elevated to the Court of Appeal in 2009.

Ramly was the presiding judge two weeks ago when a three-man bench ruled that lawyer Tan Sri Muhammad Shafee Abdullah was qualified as deputy public prosecutor to lead the prosecution team appointed to appeal a High Court ruling which acquitted Datuk Seri Anwar Ibrahim of sodomy.

Apandi was on the bench that acquitted two former policemen of murdering Mongolian woman Altantuya Shaariibuu.

He was also in the majority that held that public assemblies require police permits and the Police Act 1967 was a valid law.

Apandi also chaired the bench which heard Putrajaya's appeal to set aside a High Court decision that a Catholic weekly newspaper is allowed to use the word “Allah” in its Bahasa Malaysia section. The court is scheduled to deliver judgment in October.

In the case of Zakaria, he is the most senior of High Court judges, having been elevated in 2004.
Abang was made High Court judge in 2009 and has presided over several high-profile cases including the Malaysiakini appeal for a print licence and the Sime Darby-E&O case. Umi Kalthum was elevated to the bench in 2011.

Former council president Datuk Param Cumarasawamy said a representative of the lawyers must be a member of the JAC to discuss judicial appointments.

"In a number of Commonwealth countries, the Bar Council president is a member of the JAC to give his input," he said.

Param, who is also a former United Nation's Special Rapporteur on the Independence of Judges and Lawyers, said there must be some transparency and accountability in the elevation of judges.

In the past the chief justice recommended names to the Prime Minister who then submitted the list to the king. The Council of Rulers then endorsed the names.

The JAC states that the prime minister must uphold the independence of the judiciary, provide support necessary to enable them to exercise their function, and that public interest must be represented in the administration of justice.

Under the present make-up, the chief justice now becomes JAC chairman. The others in the JAC are the Court of Appeal president, the chief judges of the High Courts of Malaya, and Sabah and Sarawak, and a senior Federal Court judge.

The JAC Act states that four eminent persons are appointed after consulting the Bar Council of Malaysia, Sabah Law Association, The Advocates Association of Sarawak, the Attorney-General's Chambers and other relevant bodies. – September 30, 2013.