We are at it again. If a person makes an error once, one can attribute it to a lapse of judgement. If a person makes the same error repeatedly, something is not right.

When the outgoing Chief Justice of the Federal Court (‘CJ’) and the President of the Court of Appeal (‘PCA’) were appointed  there was widespread discontent with the process of their appointment. The complaint was that they had been appointed by a flawed ‘constitutional shortcut’ — by a manipulation of Article 122(1A) of the Federal Constitution. That allows the King, acting on the advice of the Chief Justice, to appoint ‘an additional judge of the Federal Court,’ even if he is older than the retirement age of 66 years.  That dissatisfaction spawned a slew of suits, notably the one mounted by the Malaysian Bar Council.

The two incumbents of those offices have resigned. Their seats are now vacant. There is now a clamour from all parts of the country that this, that, or the other nominee, or current judge of the Federal Court, is best appointed to those two seats.

Why the haste?

The position of the CJ is a vastly important function.  He is the leader of the one arm of the tri-partite government—the Judiciary.  With a stroke of his pen, he can, and often has, sent to, or save from, the gallows, many a man or woman.  He can strike down an Act of Parliament.  So long as he acts within the law, his position is inviolable.  Even the King cannot remove him.  His only exit doors are death, disease, a tribunal, impeachment by two-thirds of parliament, or age.

The PCA is a man waiting at the wings, to fill the shoes of the CJ.  He oversees the fate of thousands of cases, often worth billions of US dollars, that come before the Court of Appeal. He is no less important.

These seats must be filled after the most careful, deliberate and responsible selection the nation has ever known.  That is why the Constitution is so strict about how they are chosen.  The Constitution makes the process difficult. Under Article 122B (1) the CJ and the PCA ‘shall be appointed by the [King], acting on the advice of the [PM], after consulting the Conference of Rulers.’

Preconditions to the appointment of the CJ and PCA

This tight clause presupposes the existence of a number of things:-

First, there must be plurality of available candidates – there is no problem here. There are numerous judges in the superior courts, more than 50 senior lawyers in the Attorney General’s Chambers, and more than 8,000 lawyers at the Malaysian Bar, and numerous other senior lawyers from the Bars of Sabah and Sarawak—they all qualify. And so the pool is not limited only to the current Federal Court judges. The Constitution places no such limitation.

Second, the PM ‘advises’ the King on whom to choose. Once the PM selects a candidate, he advises the King. The King appoints the candidate.

Although the executive authority of the Federation is in the hands of the King [Article 39], the King’s discretion is limited.  Where the King is to act ‘in accordance with advice, on advice, or after considering advice, [He] shall … act in accordance with such advice’: Article 40 (1A).

However there is one final matter that the King himself has to attend to: his Majesty is obliged to appoint the CJ and the PCA ‘after consulting the Conference of Rulers’: [Article 122B].

What if the Conference of Rulers say, ‘No’?

The answer is found in Article 38—their Majesties, in this case, cannot—why? Because Article 38 gives them a right to say ‘No’ when their consent is expressly required: [Article 38(2)(c)].

By now you will have discovered that that Article 122B does not ‘expressly require their consent’. It merely requires their ‘consultation’.

The Constitution also makes provision on how the Conference of Rulers must proceed in matters that require their ‘consultation’. In the appointment of the CJ and the PCA, the Conference of Rulers can ‘act in their discretion’: [Article 38(6)].  They can ‘think about it, ask questions etc.,’ but the Article does not gives them the power to say ‘No’.

The main Article for the appointment of these two posts is Article 122B — it places into the hands of the PM an almost absolute power to appoint  certain ‘constitutional persons’.  The AG was one.  The CJ, PCA, and the two Chief Judges of the High Court in Malaya and the High Court in Sabah and Sarawak are the other four.  And then the Cabinet.

There are two reasons for it.  The first is a simple one.  Articles 122B and 40(1A) use the words the King ‘shall appoint’ on the advice of the PM.

The second reason why the PM is given so much power is — he is the living embodiment of the national corpus.  The PM is equal to the people.  When the PM makes his choice, the people make their choice.

Effect of Post Dated Letters of Resignation

The letters of resignation are post–dated. Should the resignation must take effect immediately? The Constitution does not say anything about the ‘timing’ of the resignations.

Article 125 (2) states that, ‘a judge of the Federal Court may at any time resign…’.

The phrase, ‘may at any time’ cannot logically refer to when any such resignation takes effect, but refers to the time the judge decides: ‘OK, I have to go’.

Further, the Constitution is silent about whether the resignations can be ‘back-dated’ or, like a cheque, ‘post-dated’.

But that is the nature of the Constitution, you see.  It is a living, organic document bristling with principles, with details like this omitted – deliberately. Otherwise it cannot survive the ravages of time.

Only the Federal Court can determine what the Constitution means when there is an ambiguity such as this, : [Article 128(2)].

This clause can be invoked by the Prime Minister.

Or His Majesty the King may ‘refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution.’ [Article 130].

Conundrum

But here is the conundrum. He who is interested in an outcome cannot sit in judgement. Is it not true that the rest of the Federal Court Judges have an interest in the outcome of this question?   We are in a bind, aren’t we?

So in order not to embarrass his colleagues, a practical way is for both gentlemen to leave as quickly as possible.

The third option arises from the principle of ‘reciprocity’. Because the PM has the power to recommend whena person may be appointed as judge, it could be argued that the PM has the power to determine at which point in time a judge—who has intimated a settled decision to resign– should go. If this answer is not satisfactory – and it isn’t – could not the same argument be applied (1) to the King; or, (2) to both the PM  and the King and acting together; or (3), to the PM, the Conference of Rulers and the King—all  acting together?  This question has never been asked, nor ever been answered.

And we hope it does not have to be!

The gatekeepers are paralysed

The Judicial Appointment Commission (the JAC) are the gatekeepers to the courts. Since 2009, the incoming CJ, PCA and all judges are selected by the JAC.  Once selections are made, the JAC forwards its report to the PM. He then nominates a candidate to the PM.

The JAC is headed by the CJ.  The PCA is a compulsory member. Its quorum is seven, ‘including the Chairman’ who is—well—the outgoing CJ: [ss. 5 and 13, JAC Act 2009].  But since these two gentlemen are unable to act, the JAC cannot do its duties.  It cannot recommend candidates, not until a new CJ and a new PCA are appointed.

If for some reason, the CJ is unable to act, the PCA takes over as Chairman of the JAC.  Both the CJ’s and PCA’s post in the JAC  are essential positions. But just they cannot now be filled [sec. 10(2) JAC Act].

Without a quorum of seven, the JCA is in a coma. It cannot act.

So why the hurry?

This Article began with the question ‘what is the great hurry?’

For almost a decade, the JAC decided who would be allowed entry, and who would be turned away.  They were, and are, answerable to no one: not to parliament, and not to the people.  So our judges are not chosen by any transparent or accountable procedure.  The people have no say in that process.  It is all a big secret! That is the problem you see.  Our doubts have been seeded by 60 years of opacity, and 30 years of judicial enervation. Who can argue with the proposition like that?

Why not start now—with an open, accountable, transparent process?

So why not start now?

Why not ask a group of interested candidates to apply to the Prime Minister’s Department?

It is suggested that the PM announces that interested candidates may apply for the post of Chief Justice Federal Court, and the President of the Court of Appeal.

Candidates may apply to the Prime Minister’s office with their antecedents, and other particulars as may assist the PM make an informed choice.

Every candidate must be given a decent opportunity

From which pool would you choose the top two appointments of the judiciary?

As of this year (2018) the Malaysian Bar has more than 3,600 lawyers who have been in practice for more than 21 to 30 years. It has more than 1,100 lawyers who have crossed more than 31 years in practice. It has more than 5,000 lawyers who have clocked between 11 and 20 years. On the other hand, the Attorney General’s Chambers has between 75 to 200 lawyers of similar qualification. We cannot omit lawyers from the Sabah or Sarawak Bars.

The Selection Process 

After security vetting, candidates should be called for interviews.  That would  result on a ‘short list’. It should not exceed 10 names.  Those in that list who cannot be made CJ or PCA can be considered for the position of Federal Court Judges. Many vacancies for those positions are expected to fall vacant very soon.

These candidates should then be re-interviewed.  Their positions in relation to various constitutional issues must be ascertained. Construing the Constitution requires different skills than interpreting Acts: the one is alive, vibrant and mobile, the other, cast in adamantine, and not easily malleable.  The Candidates’ legal knowledge in wide-ranging areas of practice ought to be tested.

There are three main areas in which they must have a deep working knowledge: Constitutional Law, Commercial Law and Criminal Law.

Any article they had written ought to be studied at some length. Their judgements and the quality of their penmanship should be assayed.

Most importantly, it must be proven that they have an independent mind.  Not one seduced by the beauty of words, the power of the executive, the lure of bribes or the enticement of royal titles.

This assessment must be carried out by a team of retired judges, senior members of the Bar from both the Peninsula and East Malaysia, and senior lawyers from the  AG’s Chambers—the assayers in themselves must possess the qualities they seek from their candidates!

Appearing before a Parliamentary Select Committee

After this, Candidates should be invited to appear before a Parliamentary Select Committee comprised in a balanced number of MPs from both sides.  In the presence of the Select Committee, Candidates should be interviewed over live telecast.  That way the nation can see for itself what is the quality of the judges it is getting.

All transparent processes. Wholly accountable.  Entirely visible. Isn’t that a reasonable, currently achievable outcome?

This is the right opportunity for us to start doing something right—something we ought to have done a long time ago—instead of falling into the old rut and pointing to a narrow pool of ready-to-retire judges?

Is ours a transparent selection process, or an opaque one?

On 5 December 2016 the Daily Mail, United Kingdom, made the following remark:

‘A candidate [for the US Supreme Court], who has already been heavily vetted by White House staff and security services, and interviewed by the President, before his or her nomination, is then required to take part in an exhaustive ‘confirmation’ process which spans several months… Compare and contrast, if you will, this great exercise in democratic accountability with the secretive and opaque process via which we in Britain select new members of our Supreme Court. These 11 justices, who earn £212,000 a year, are, like their American counterparts, granted extraordinary powers to shape our everyday lives.’

So opacity is out, and transparency is in.

It is argued that this ensuing ‘delay’ may have two effects:

First, the argument that ‘there is now no one to perform the CJ’s or PCA’s duties’.

The answer to that is, the Constitution allows the next senior Federal Court Judge to step up—and we have sufficient number of them for the moment.

The Second argument is that ‘any deferment would cause us to lose the services of one or two judges who may have reached the evening of their judicial career’.

To accede to this argument is to limit the pool of talent, and to work with a pool entirely selected by the previous regime.

Selecting a CJ of the Federal Court and the PCA should be like selecting a member of the Navy Seals

The tests must be rigorous.

It must be one that produces candidates who exhibit the highest intellectual power, tenacity, integrity, and a whole host of other qualities that only 2 persons — in a nation of 30 million —  have.

A higly-transparent, visible process is imperative

Do you not think that a transparent, highly visible, selection process ought to take some time?  One that requires mature consideration?

So—again, why this unholy haste?