Continuing from yesterday's Q&A; in Put in 'cold storage' by ex-chief justice

, former Court of Appeal judge Shaik Daud Mohd Ismail speaks to malaysiakini on the rot in the judiciary.

Malaysiakini: A few months back, senior lawyer Raja Aziz Addruse questioned the appointment of Ahmad Fairuz Sheikh Abdul Halim as the Chief Judge of Malaya. Was Raja Aziz's concern valid?

Shaik Daud: Yes it was valid. There are much more senior judges than Ahmad Fairuz like (Abdul) Malik (Ahmad) and Siti Norma (Yaakob). There is nothing wrong with making Siti Norma as the CJ of Malaya. They are much more senior and much more experienced. But why were they not considered? Why? If you put merit on merit, they are higher. If you put seniority on seniority, they are also higher.

So you agree with Raja Aziz?

Yes. I want to make it clear that I don't have anything against Ahmad Fairuz but these two judges (Malik and Siti Norma) are much more deserving of and capable for the job. Siti Norma had once been a Chief Registrar, she knows how to control the court. As for Malik, he has the quality, qualification and experience. All these qualifications will go against Fairuz. Yet Fairuz was appointed.

Was there interference in the appointment?

Probably, I don't know.

But what do you think?

Probably yes. I cannot say for sure. But it is legitimate for any to suspect the appointment.

Former Court of Appeal president Lamin Yunus had replied to Raja Aziz's question and...

Well, Lamin's [reply] was very childish. For an ex-president to the Court of Appeal to give such a reply was immature. I remember he made this remark (during ex-deputy prime minister Anwar Ibrahim's appeal for bail) that Anwar cannot be freed on bail because of the demonstration which was happening then. But he did not realise that it was because Anwar was not allowed bail that the people were demonstrating. Consideration must be strictly on the law. Do not talk about the demonstration when it had nothing to do with the bail. I feel a judge must disqualify himself if he thinks that he cannot give a fair decision.

Have you disqualified yourself on this reason?

Yes, of course. I did it many times as a High Court judge and even as a Court of Appeal judge.

When judges go through the appeals records, they sort of already decided [on them] even before they hear the lawyers' arguments. Is this fair?

Well of course after reading the records you sort of make up your mind whether the appeal should be allowed or not. But once you are in open court, you must keep an open mind. This is because sometimes counsel can persuade the judge one way or another. Sometimes the counsel may see certain things that the judge had overlooked. A judge should never decide on paper alone.

Coming back to the appointment of judges, do you think appointments should be more transparent?

Yes, I think they must be improved. I have mentioned this when I was called to M-Ten (National Economic Action Council or Majlis Tindakan Ekonomi Negara) to talk on the judiciary. I told them now the appointment of judges is based on recommendation by the Chief Justice and it goes to the prime minister then to the Agong. In the past, it has worked wonderfully because everybody worked without emotion and political thinking. Unfortunately, now that system doesn't seem to work and some appointments are questionable. So it's high time to change the method.

How do you think it should be done?

They asked me the same thing and I've told them that the present system should be done away with. There should be a special commission of judges, ex-judges, chief justice, chief judges of Malaya, and Sabah and Sarawak. There should be representatives from the Bar Council and if necessary the main representatives from the main communities Malay, Chinese and Indian. But not from the political parties!

Any appointment will go through the commission. If anyone is unhappy with an appointment, they can write in to the commission. [With] the present system we don't even know who is appointed until we read the paper the next day. So there is no chance to object to tell that a particular candidate is unsuitable for certain reasons like corruption and misconduct.

When Tan Sri Mohtar Abdullah was appointed as a Federal Court judge was there any dissatisfaction among judges? Yes there was dissatisfaction among the judges. In fact I mentioned it that he (Mohtar) should not have been appointed.

To whom did you mention this?

I do not remember [to whom specifically], but [it was] to many people.

What did you say?

I said that he should not have been appointed as a Federal Court judge. There is a conflict of interest [with] what he did before. It's like a reward. To me it was a reward for him. If you want to reward him, you reward him somewhere else but not at the prosecution.

Has it happened before, an attorney-general who is later appointed as Federal Court judge?

The last time was Tun Salleh Abas, but he was not the AG but the solicitor-general. Salleh Abas... he was not controversial. He was held in very high esteem by people then. But Mohtar was different. There were allegations that he brought bad name to the country and the legal department.

Was he treated well by the other judges when he came back to the judiciary?

Well, everybody must accept the fact that he was appointed and there's nothing they could do about it. They were unhappy but they didn't want to express it...of course among ourselves we talked about it. I expressed myself and told people how I felt about the appointment.

You worked with Dzaiddin for a short while. Do you think he had succeeded in his objective to improve the judiciary's image?

I don't know if he has succeeded but he has made a very good start to restore the judiciary. I hope whoever succeeds him will continue his efforts. This is not a short-term effort as the damage is bad. The good image of the judiciary was built up [over] about 100 years but it only took several years to be completely destroyed. It will take a generation to repair the damage.

Before this, no one talked bad about a judge. When people know that you are a judge, they will have high respect for you. Nowadays the word judge sounds like a dirty word. ( Laughs. ) To restore that will take some time. Dzaiddin started very well and he commands the respect of everybody. Hopefully he gets an extension. I think the chief justice should not retire at 65 . I think they should retire much later. A chief justice must be given time to do his work and implement his policies. One or two years may not be enough.

Do you think there should be a specific term of service for the chief justice?

Yes. There should be a term of four years so it doesn't matter what your age is because you will have ample time to serve and still have to serve your term and implement policies.

You said you hoped that Dzaiddin gets an extension. If he does not, who will succeed him?

That is up to the prime minister.

But who do you think should succeed Dzaiddin?

My view is that it should be Malik. He is a very capable judge. He is still young so he has a long way to go before he retires. So he can do a lot of work. He is very experienced. His temperament is very good. I have never seen him scold lawyers or shout at people. He is always courteous. Such temperament is needed for a judge and as the chief justice you'd need extra of that good temperament and patience. But at the same time, you'd have to be strict on errant judges. For example, if you see a judge who always goes out drinking in pubs at night, you should call him up. I certainly hope and pray that Malik gets it. For the sake of the judiciary. I think he can continue Dzaiddin's efforts.

The general public is now aware of legal issues. What do you think about that?

It's a very good development because it helps to develop the law. They are more aware of what's going on in the world and more aware of their liberties and rights. This helps to develop the judiciary and stop abuses. Before this you seldom hear reports on abuses from certain quarters but now they will not keep quiet and will voice out against the abuses. Some write to the press about it.

This also improves the country as the rakyat do not want an abusive leader. The rakyat can only be pushed to a certain extent and when they are pushed to the wall, they will fight back. That is why there are demonstrations. They would not have demonstrated of they were not pushed.

This is the second of a three-part series of interviews with Shaik. The last part will appear tomorrow.