Chief Justice Fairuz Sheikh Halim has used dubious logic to refute allegations that the government has appointed bad judges. He said judges were appointed and promoted according to provisions of the Constitution.

And since it is the same system of appointment that has yielded such illustrious judges in the past as previous Lord Presidents Sufian Hashim and Sultan Azlan Shah, the present judges by extension must also be good.

Fairuz seemed to ask during a judges conference on Aug 22, 'if they (the former Lord Presidents) can be people of integrity, why can't the present judges, who are appointed by the very same authority through the same procedure, have integrity too?'

The answer to that question is simple. Under our Constitution, it is the prime minister who decides on the appointment of judges so it is only reasonable to expect that good prime minister appoints good judges and a bad prime minister appoints bad judges. The illustrious judges so named by Fairuz were all appointed by former prime ministers who were eminently noted for their high integrity in a bygone whereas the chief justices who were embroiled in scandals were all appointed in more recent times during Dr Mahathir Mohamad's reign.

To understand how judges are appointed, let us take a closer look at the Constitution. The appointment of judges is governed by Article 122B of the Federal Constitution where it is stipulated that all judges are appointed by the Yang di-Pertuan Agung, acting on the advice of the prime minister, after consulting the Conference of Malay Rulers.

In addition, the prime minister, in tendering his advice on these appointments, has to consult, wherever applicable (depending on which judicial position), the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts or the Chief Minister of each of the states of Sabah and Sarawak.

Under the parliamentary democracy system inherited from the British, the Yang di-Pertuan Agung, being a figure head, is obligated to act on the advice of the prime minister and his ministers. So, as far as the appointment of judges is concerned, the prime minister is the decision-maker with other bodies acting only in their advisory capacities without veto power.

Further, there is no set criteria or open procedure through which the prime minister makes his decision. The wielding of such absolute power by one person without transparency and without checks and balances is of course open to abuse. It is all the more unsatisfactory considering the fact that the judiciary is an independent institution, whose function under the Constitution is to check the excesses of the executive, among others.

This system of judicial appointments is therefore inherently flawed as there is too much temptation for the prime minister to abuse such power for political expediency at great detriment to the country and the people. And indeed, it has happened to devastating effect as proven in the infamous judiciary debacle of 1988, during which the Lord President and other top judges who stood up for justice were savagely victimised for political reasons.

The Malaysian judiciary has not recovered since, as evidenced from the fact that judges notoriously tainted in the disgraceful trials of Anwar Ibrahim continue to be given promotions with indecent speed, leapfrogging over other more senior and deserving judges to now occupy the Federal Court, the highest court of the land. These appointments were, of course, met with much criticism and further strengthened the poor image of our judiciary.

Under these circumstances, the Bar Council's recent call to establish a judicial commission to deal with the selection, appointment and promotion of judges is most timely indeed. Such a commission will represent a most significant step towards the rehabilitation of our much tarred judiciary. It will also bring some hope to the people that the now almost forgotten reform agenda promised by Prime Minister Abdullah Ahmad Badawi during the last election is not totally dead.