THE government says that there is no conflict between the Constitution (Article 122(B)) and the bill on the appointment of judges because the bill is only involved in the selection of judges (”Bill not in conflict with Constitution” — NST, Dec 24).

But the selection of judges must not offend the general principle of appointing judges and Article 122(B), otherwise the stand taken by the government is ultra vires both laws.

The tenor of Article 122(B) indicates the prime minister names the candidate to the chief justice. So, how does the commission set up by the government under the bill fit into this legal scenario?

It is noticeable that the Constitution does not provide the manner in which the consultation between the prime minister and the chief justice is to be made.

It does not even indicate that a commission or a body be appointed to make the selection of judges. But a commission was set up under the bill which overrides the position of the chief justice as an independent, inviolable legal entity by sending the names of the candidates, not to the chief justice but instead to the prime minister, which is completely contrary to the principle that in an independent judiciary, the chief justice, not the prime minister, appoints the judges.

The bill should provide instead that the prime minister shall consult the chief justice (as required by Article 122(B)) on the names given by the commission, because the chief justice by right can reject the names, if he thinks that the candidate does not have the qualities of a judge.

However, the commission encounters a fundamental defect in the appointment of the chief justice itself because in law, under the system of election in the commission, the appointment can, by virtue of the election process, be made by the lay members, who, we must assume, have no qualification to determine the professional requirement of a judge.

So one cannot see, by any stretch of the imagination, how a proper appointment of the chief justice can be made without the appointing chief justice acting alone.

Instead, we have a strange situation where the chief justice is put in the commission as a member where he cannot make his own decision, even if it is fundamental to safeguard the interest of the judiciary.

So, in the final analysis, two fundamental defects contrary to the law have been committed by the bill. First, it does not make the chief justice the appointing authority, as required under the general principle of constitutional law, and as required by Article 122(B) for the purpose of reference to him by the commission.

Secondly, if the bill intended that the prime minister consults the chief justice, on receipt of the recommendation made by the commission, it does not so provide, which is contrary to Article 122(B) of the Constitution which requires the prime minister to do so.

It is felt that the bill has created a doubt on its validity.

Should not a reference to the Federal Court be made to determine what is the true position regarding the intention of Article 122(B), in so far as the appointment of judges is concerned?

The prime minister says the purpose of the bill is to give independence to the judiciary because the investors seem to think the judiciary has no independence. But is it not the case that exactly the opposite had happened because the judiciary, by the force of the bill, has lost its independence instead?

One seems to get the feeling, by the manner in which the bill is drafted, that the authorities feel that the court is in their way to achieve peace and harmony and to mete out fairness and justice and that the power is best vested in the hands of the executive instead.

That seems to be a fair proposition, but it may be useful also to remember that time has shown that in any country, unless a truly independent, impartial and strong judiciary exists to maintain the balance between opposing forces, and to oversee any excessiveness in the act of governance, then sooner or later the democratic system of government will crumble and anarchy will take its place. Heaven forbid that will happen to us.

ABDUL RAZAK ABU SAMAH, Bohor, Pahang

Source: NST – December 31, 2008