comment

I am dismayed over the statement by Lamin Yunus, the former President of the Court of Appeal, regarding Raja Aziz Addruse's remarks on the appointment of Justice Ahmad Fairuz as Chief Judge of the High Court of Malaya, as reported in The Star on Nov 13.

In the daily, Lamin was reported to have criticised Raja Aziz over his article in the Bar Council publication, Insaf .

In his article, Raja Aziz, a constitutional lawyer, criticised Ahmad's appointment last month saying that the appointment caused apprehension among members of the Malaysian Bar as many of his judgments were deemed 'unpopular'.

"In my humble view, this is not merely a question of free speech or expression in a democratic country. This view is tantamount to criticising the ability or inability of the King to appoint a suitable person," said Lamin in the report.

Lamin's view clearly goes against the grain of the constitutional position of the King under the Malaysian Constitution over judicial appointments.

Under Article 40(1A) of the Malaysian Constitution where the King is to act in accordance with advice "he should accept and act in accordance with such advice". Under Article 122B of the Constitution, the chief judge is appointed by the King acting on the advice of the prime minister, who consults the chief justice and the Conference of Rulers.

Inconsistent with past judgments

In delivering the judgement of the Court of Appeal in Re: Dato Seri Anwar bin Ibrahim (2000) 2 MLJ 483, Lamin who presided the court interpreted articles 40(1A) and 122(B) regarding judicial appointments as follows:

On Article 40(1A) he said:

"Clearly therefore the Yang di-Pertuan Agong must act upon the advice of the prime minister. The advice envisaged by Article 40(1A) is the direct advice given by the recommender and not advice obtained after consultation".

On Article 122(B) he said:

"The intention of this article is clear i.e. the Yang di-Pertuan Agong must act on the advice of the prime minister."

From these interpretations it is clear that the choice of judicial appointments is not that of the King. In the case of chief judges, the choice is that of the prime minister, after consulting the chief justice and the Conference of Rulers.

On the process of these constitutional consultations Lamin said in the same judgment:

"When the prime minister has advised that a person be appointed a judge, and if the Conference of Rulers does not agree or withholds its views or delays the giving of its advice with or without reasons, legally the prime minister can insist that the appointment be proceeded with."

In the context of this constitutional framework, Lamin's present statement that Raja Aziz's remarks were critical of the King's "ability to choose a suitable candidate" is not only incorrect but inconsistent with his own earlier judicial decision.

Recommender questioned

Principle 13 of the UN Basic Principles on the Independence of the Judiciary provides:

"Promotion of judges, whenever such a system exists, should be based on objective factors, in particular ability, integrity and experience."

Similarly Principle 17 of the Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region provides:

"Promotion of judges must be based on objective assessment of factors such as competence, integrity, independence and experience."

The guarantee of judicial independence is for the benefit of the judged and not the judges. Therefore, if the internationally and regionally required criteria are not seen applied in the selection process for judicial appointments and promotions, then it is open to anyone including a member of the public to publicly question such selections.

In doing so in Malaysia, and within its constitutional framework, one is not questioning the King but the recommender, i.e. the prime minister whose advice the King is obliged to accept.

Lamin, I am afraid, has certainly deviated and gone off the constitutional path since his retirement.

PARAM CUMARASWAMY is the United Nations Special Rapporteur on the Independence of Judges and Lawyers.