FEB 7 — In the words of the Chief Justice of Australia, it was a remarkable statement.
It was remarkable for the extent of concurrence the statement had achieved. That remarkable statement is the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.
“The concurrence is remarkable because the statement expresses ideals common to legal systems of very different kinds. Systems which are based on the common law and systems based on the continental legal system have found common ground; societies informed by different value systems esteem the judiciary as ‘an institution of the highest value in every society’.
“States whose governments follow the Westminster model, states based on the American model and states whose governments have developed from earlier socialist forms all acknowledge that the objectives and functions of the judiciary include:
(a) [ensuring] that all persons are able to live securely under the rule of law;
(b) [promoting] within the proper limits of the judicial function the observance and attainment of human rights; and
(c) [administering] the law impartially among persons and between persons and the State.” (Sir Gerard Brennan, Chief Justice of Australia)
The Statement of Principles was first adopted by the Chief Justices from 20 countries in the Asia Pacific in Beijing in August 1995, thus the Beijing Statement of Principles.
A revised version was adopted in Manila in August 1997. It is now subscribed to by 32 Chief Justices in the Asia Pacific Region, including the Chief Justice of Malaysia.
Yes, lest it is forgotten, through Chief Justice Tun Datuk Sri Mohd Eusoff Chin, Malaysia is a signatory of the Beijing Statement, which represents the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary.
(See the Beijing Statement here.)
There are 44 Articles in all, with 7 Articles on “Appointment of Judges” (Articles 11 – 17). Article 17 states as follow:
“Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.”
Except for the word “independence”, the above is similar in wording with Article 13 of the United Nation (UN) Basic Principles on the Independence of the Judiciary.
The latter instrument was formulated in 1985 to assist UN Member States in their task of securing and promoting the independence of the judiciary and should be taken into account and respected by governments within the framework of their national legislation and practice, and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general.
Adopted by the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders held in Milan in August/September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, the UN instrument has 20 Articles.
Article 13 states as follow:
“Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.”
Integrity, competence and experience are similarly the criteria for appointment as judges of the superior courts — Federal Court, Court of Appeal and High Court — as stated under section 23(2)(a) of the Judicial Appointments Commission (JAC) Act 2009 (Act 695).
In other words, Act 695, whose legislative purposes include upholding the continued independence of the judiciary and which establishes the JAC, subscribes to the system of promotion of judges based on seniority.
Now, the International Commission of Jurists (ICJ) identifies two systems of promotion of judges: (1) a system based on seniority, under which judges are promoted after spending a fixed time at a post (and are still able to discharge their professional duties); and (2) a system based on merit, in which improper factors such as race, sex or religious or political affiliation have no role to play. (See International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors – Practitioners Guide No. 1, 2007)
Promotion based on merit can be seen in Article 4.1 of the European Charter on the statute for judges which provides that when promotion of judges is not based on seniority, it must be based “exclusively on the qualities and merits observed in the performance of duties entrusted to the judge, by means of objective appraisals performed by one or several judges and discussed with the judge concerned.”
One may say that Act 695 contemplates both systems of promotion of judges as can be seen in section 23(2) which, for good measure, is set out in full below:
“The [Judicial Appointments] Commission in selecting candidates shall take into account amongst others, the following criteria:
(a) integrity, competency and experience;
(b) objective, impartial, fair and good moral character;
(c) decisiveness, ability to make timely judgments and good legal writing skills;
(d) industriousness and ability to manage cases well; and
(e) physical and mental health.
Be that as it may, there are views that seniority should be the overriding factor. Such a view has consistently been expressed by the Malaysian Bar, most recently in 2018.
The Bar then expressed its concern that “the omission of the more senior judges may invite an adverse perception of the judiciary as a whole.”
“The Malaysian Bar has consistently called for the appointment and promotion of judges to be reformed — clearly defined criteria for the selection process, meaningful consultation with all relevant stakeholders and transparency and accountability of all involved in the appointments processes — are essential,” said then Vice-President Abdul Fareed Abdul Gafoor in a statement.
“Until such reform takes place, seniority should be the foremost criterion in any promotion exercise,” he added.
While the criterion does not necessarily address the issue of meritocracy, it can to a large extent avoid subjectivity and favouritism. This was expressed by the Bar as far back as in 2003. (See “Promotions in the Judiciary”, 2003)
While the Bar has been very welcoming to recent appointment and promotion of judges, it remains to be seen how it views the recent elevation and promotion of two judges to the higher court.
*This is the personal opinion of the writer or publication and does not necessarily represent the views Malay Mail.
