A lively, and at times fiery, exchange has been taking place on malaysiakini over the Bar Council's decision to hold an EGM on the appointment and promotion of judges.

Several who are against such a decision have resorted to English law and case studies to back their arguments.

Very ironically and strangely, no mention has been made of the British government's proposed legal reforms in judicial appointment and promotions, unveiled in mid-July this year.

Described by The Guardian (July 15, 2003) as "the biggest shakeup in the legal system for decades", the UK government has proposed, among other major changes, to reshape its judicial appointment system - which has been found to be "slow, opaque, unsystematic and unprofessional".

Details of how judges could be appointed in future were unveiled by Lord Falconer of Thoroton, secretary of state for constitutional affairs in the British parliament on July 14, 2003.

Falconer said that the reforms were to ensure that judges continue to be independent - of the executive, and the legislature:

"They must be able to connect with, and reflect our society, and they must be of the highest quality. We must recognise that improvements should occur when confidence is high.

"Currently we have a system where all the judiciary - and I include in that magistrates and tribunal members - are appointed mainly by, or on the recommendation of, one cabinet minister, where until June 12 that cabinet minister also sat as a judge in the highest court in the land, and where before someone becomes a judge in our highest court of appeal, they are first to be made a member of the legislature - namely this House.

"But now we need arrangements which embed existing independence in a way which does not depend on one minister, and ensures that we have not just a quality judiciary, not just an independent judiciary, but also a diverse one which reflects our community.

"We must implement change in a way that carries the confidence of the community, including the legal and judicial community. That means we must consult widely and fully before deciding the detail of our changes.

"The government also proposes to establish an Independent Judicial Appointments Commission for England and Wales to recommend candidates for appointment as judges. At present, judges are effectively selected by the Lord Chancellor.

"It is unsustainable for a minister to continue to select judges in this way. The process of selection of judges for appointment in England and Wales must be demonstrably impartial and independent, as it now is in Scotland and will be in Northern Ireland.

(I cannot help but recall the remark by the then United Nations special rapporteur on the independence of judges and lawyers Param Cumaraswamy soon after the recent judicial promotions: "The present procedure is most unsatisfactory. It vests too much power in one person like the chief justice on selection and recommendations.")

Falconer added that the proposed commission will "insulate more the appointment of judges from politicians and will assist in opening up appointments to some of the groups of lawyers which are under-represented in the judiciary at the moment, including women, ethnic minorities and, at the higher levels, non-barristers.

"The government proposes, subject to consultation, that the new Independent Judicial Appointments Commission would make recommendations to the secretary of state. This model would significantly curtail ministerial involvement by placing the process of selecting candidates in the hands of the commission.

"However, the secretary of state would still remain ultimately accountable to parliament for the actual appointment. This model would therefore preserve the constitutional convention that Her Majesty The Queen acts on the advice of her ministers."

Equally pertinent is the proposal that the 15-strong commission be made up of five judges, five lawyers and five lay members and be headed by a layman and not the lord chief justice.

It has also been proposed that a statutory duty be placed on the secretary of state to defend and protect the independence of the judiciary both in and outside the government. (At present the Lord Chancellor protects judicial integrity through convention rather than on any statutory basis.)

According to the mainstream newspapers, the proposals were largely welcomed by lawyers. Sir Louis Blom-Cooper QC, a deputy high court judge from 1992 to 1996 commented in The Guardian (15.7.03):

"What matters is that the new system balances legal and non-legal expertise. If, as the government favours, the proposed judicial appointments commission is composed of a majority of judges and lawyers the system should work, even if the chairman is not legally qualified. But whatever mode of selection to the bench is adopted, the key factor is that political influence must be removed from the process."

In view of the fact that Malaysia's legal system is based on English common law and the recent 'radical' proposals for change in UK as highlighted above, and in the light of the recent controversial judicial promotions, the Bar Council's decision to call for an EGM to discuss the issue makes very good sense and should be seen as crucial.

It is hoped that both the executive and the judiciary will emulate the UK government in ensuring that "our judges and our legal system are able to meet the challenges of the 21st century" by being open to changes that are needed and pressing.

They can begin in a very significant way by supporting the Bar Council's EGM (and even sending representatives) to discuss and to propose changes to the system of appointing and promoting judges in Malaysia.