ON July 24, 2003, the then chief justice Tan Sri (now Tun) Ahmad Fairuz Sheikh Abdul Halim announced the promotions of eight judges. The four new Federal Court judges were Datuk Abdul Hamid Mohamad, Datuk Wira Mohd Noor Ahmad, Datuk Pajan Singh Gill and Datin Paduka Rahmah Hussain.
Four other High Court judges were elevated to the Court of Appeal: Datuk Nik Hashim Nik Ab Rahman, Tengku Datuk Baharudin Shah Tengku Mahmud, Datuk Arifin Jaka and Datuk S. Augustine Paul.
However, the Malaysian Bar was not happy with the promotion list because its then president, Kutubul Zaman Bukhari, had issued a statement on July 5 on the promotions arguing that if senior judges were bypassed in promotions in favour of junior ones, there must exist reasons which must be explained to the public.
"Anything less than a full and convincing explanation will damage public confidence in the administration of justice."
He said the Bar would, if necessary, call an extraordinary general meeting to discuss the matter.
In announcing the new appointments, Ahmad Fairuz said seniority was not the only criterion, and that if it was, then there would be much deadwood.
"The seniors will not work because they know they will move up when the time comes because they are seniors."
He also denied that the promotions of three of the eight judges -- Arifin, Paul and Pajan -- were a "reward" for their decisions in cases involving Datuk Seri Anwar Ibrahim.
Responding to the promotions, Khutubul issued the following statement:
"Today's announcement of promotions in the judiciary, which saw so many senior judges being passed over, has unfortunately confirmed the fears of the Bar that such an important aspect of our system of justice has been lightly treated, with indifference to transparency and objectivity, and in the absence of consultation with the Bar.
"There has been no credible explanation for the en masse bypass of senior judges, and none is apparent. This process, or lack of proper process, has been carried out despite the clarion call by the Bar Council as exemplified in the Bar Council's press statement dated July 5, 2003.
"The Bar Council had taken great pains to explain that, when senior judges are bypassed en bloc in favour of junior ones, the question that immediately presents itself is not so much the suitability of the latter, but rather on what acceptable criteria have the former been considered unsuitable and therefore not been chosen (as would otherwise have been in the ordinary course of things).
"This issue is of legitimate concern to the Bar and the public, especially when passing-over appears to have become the rule rather than the exception.
"Today's event has exposed the alarming breakdown of a much needed mechanism for the determination of fair and proper judicial promotions in this country.
"It leaves many questions unanswered, and sinks the system into poorer health."
With this, Khutubul reiterated the Bar's call made even much earlier for an independent judicial appointments and promotions commission in consultation with the Bar to ensure the appointments and promotions process is transparent, structured, accountable, objective and consultative in manner.
Hence, the Bar Council called an EGM on Oct 5, 2003, to pass a resolution for the inception of this commission and also to call on the chief justice to disclose and make public the method and criteria employed in the July 24, 2003 judicial promotions.
In response, former prime minister Datuk Seri (now Tun) Dr Mahathir Mohamad said that in the event that the Bar Council's resolution was adopted, the judges appointed would be indebted to the council and would no longer be independent.
The then de facto law minister, Datuk Seri Rais Yatim, said the appointment of judges must be decided by law and not through public sentiment or pressure from interest groups.
Writing in the New Sunday Times on Sept 28, 2003 ("Appointment of judges: Bar should act rationally"), lawyer Datuk Zaid Ibrahim joined in calling on the Bar not to go ahead with the EGM and instead use diplomacy when dealing with the judiciary, but he did not say that he was against the Bar's proposal.
Alas, due more to the members' insouciance and the stringent quota requirement, the EGM scheduled on Oct 4, 2003, could not proceed.
But in the government's view, Rais said the lack of quorum exemplified the conclusion that the legal fraternity, especially practitioners, were not of the same view as the council.
The Bar Council did not lose hope and it continued with its call for the commission whenever an opportunity arose.
Expectedly, the Bar's lukewarm relationship with the judiciary worsened as thenceforth Ahmad Fairuz virtually stopped all dialogue with the Bar Council, and refused to meet Khutubul.
Instead, he chose only to engage with the state Bar committees with the council wondering whether this was a divide-and-rule tactic.
At the Johor Bar annual dinner on March 11, 2006, in Johor Baru, Ahmad Fairuz shocked everyone present by revealing that he did not like Khutubul and believed that the latter's successor, Yeo Yang Poh, would be a better person to work with. But he was obviously mistaken.
Yeo was no less determined and convinced than his predecessor that there ought to be a commission. Backed by a strong Bar Council and its website, Yeo continued with the mission.
In a statement dated June 6, 2006, he said if the commission was implemented, "this will prove to be one of the greatest legacies that the government and the people of Malaysia can leave behind for the benefit of generations to come".
But the Bar's call for such a commission continued to fall on deaf ears.
The new de facto law minister, Datuk Seri Nazri Aziz, felt that it should be the judiciary and not the executive who should initiate this.
Thanks to the infamous V.K. Lingam video clip, the need for a more transparent and accountable appointments mechanism could not have been more urgent.
On Sept 26 last year, the Bar led by its president, Ambiga Sreenevasan walked from the Palace of Justice, Putrajaya, to the Prime Minister's Office to hand over the memorandum calling for the formation of a commission.
Hence, needless to say, when the prime minister announced last Thursday that the government agreed to the setting up of a commission, the Bar gave him a standing ovation.
Indeed, the Bar must acknowledge the efforts of Zaid, and the determination of the previous and current Bar leaderships for this struggle now coming to fruition.
If Sept 26 is remembered as the day the Bar walked for justice, then April 17 should be celebrated as the day the Bar dined for justice, savouring the fruits of its many years of struggle for an independent commission leading to an independent judiciary.
The Bar proposes that this commission acts in a recommending capacity in that when the prime minister consults the chief justice over judicial appointments before advising the Conference of Rulers, under Article 122B of the Federal Constitution, the chief justice's advice to the prime minister on candidates will be the candidates identified by this commission.
In other words, it only changes the chief justice's constitutional role in this process and not that of the prime minister and the Conference of Rulers.
With this procedure, it will also render the appointment of judicial commissioners unnecessary.
The Bar is of the view that the commission should comprise 13 members made up of the following:
- Chief justice, who should head the commission;
- The attorney-general;
- The president of the Court of Appeal;
- The chief judge of Malaya;
- The chief judge of Sabah and Sarawak;
- The minister of law or his nominee;
- President or vice-president of the Malaysian Bar;
- Three senior practising lawyers (nominated by the Bar Council); and,
- Three lay people who are not practising lawyers and have never held judicial office (to be appointed by agreement of the other members of the commission).
In this respect, I wish to say that any argument that the judiciary will be beholden to the Bar is fallacious as the Bar, though a minority in this composition, is nevertheless a major stakeholder in the administration of justice.
To say so will mean also that judges appointed are beholden to the executive.
As Ambiga said at the dinner last Thursday, this issue should not arise as judges know that they discharge their responsibilities impartially, independent of who the appointing authority is, guided only by their oath of office and their conscience.
However, it cannot be denied that whoever is nominated and appointed to sit in this commission does matter a great deal.
This is echoed by Chief Justice Datuk Abdul Hamid Mohamad in his speech at the recent Judges' Conference. He said: "They (the commissioners) themselves must be people of integrity, knowledgeable, incorruptible, fair and without any vested interest. They should not have an agenda of their own. Neither should they be the conduit for lobbying for the judgeship.
"Again, as I have said at Universiti Utara Malaysia, whatever system we have, in the final analysis, it is the people who implement the system that matters."
Indeed, there is no perfect mechanism but this is nevertheless the best option available as many Commonwealth countries have also adopted it.
Even Britain has opted for such an independent judicial appointments commission, doing away with the centuries-old practice of letting the lord chancellor make or recommend judicial appointments to the Queen.
But here, we have the executive and the rulers who continue to act as the check and balance just in case the commission fails in its constitutional duty, and vice versa.
In conclusion, let no one mistake the Bar's resolve when it sets its mind into doing something which is good for the people and country.
The public can be assured that notwithstanding this historic announcement, the Bar will not sit back until the commission becomes a reality.