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PICKING JUDGES: There has to be fair play |
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Posted by admin
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Friday, 03 July 2009 10:03 |
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By Lester Clement Lee We know of cases where persons were disqualified by their convictions but after expiry of the disqualification went on to become members of parliament, ministers and chief ministers. Are there different standards of qualification to be applied for elected and appointed representatives and judges?
I REFER to your report "Minister on why lawyers are reluctant to be judges" (NST, June 24). Minister in the Prime Minister's Department Datuk Seri Nazri Abdul Aziz said the government had set up the Judicial Appointments Commission (JAC) to ensure quality judges are chosen. While the government's intentions are laudable, it must ensure that the selection process undertaken by the JAC is conducted in accordance with legal principles and natural justice.
Candidates must be assessed fairly on their qualifications, as provided for under the Federal Constitution and criteria under the JAC Act 2009. Extraneous and non-legal consideration should not be used to disqualify prospective candidates who are otherwise qualified and competent to be appointed judges or judicial commissioners (JCs).
For example, can public perception alone be used as a reason to disqualify candidates when they do not suffer any legal disqualification from being appointed judges or JCs?
Legal grounds for disqualification may include the candidate's unsoundness of mind, bankruptcy and conviction for an offence. But can a candidate who was acquitted by the courts be disqualified for this reason alone? Such grounds for disqualification are not provided for under the Federal Constitution or the JAC Act or under any other law relating to the appointment of judges or JCs. It runs contrary to principles of justice and human rights.
In the cases of election or appointments to Parliament or other high public office, conviction of an offence attracting a minimum prison sentence of not less than one year or fine of not less than RM2,000 is grounds for disqualification. But even then, the disqualification does not apply after a period of five years from the date of release from prison or the fine.
No one should be punished or condemned forever, more so in the case of a person who was not convicted of any offence but, on the contrary, was acquitted more than five years before.
We know of cases where persons were disqualified by their convictions but after expiry of the disqualification went on to become members of parliament, ministers and chief ministers. Are there different standards of qualification to be applied for elected and appointed representatives and judges?
As to the so-called public perception of a candidate who was acquitted by the courts and then appointed to the Bench, can a member of the public honestly and legally complain that such a person is unfit to be a judge?
This is where those involved in the selection of judges can prevent injustice by fearlessly and fairly assessing candidates strictly according to the law and not be distracted by a possible public backlash which has no legal or just basis.
Otherwise, the selectors themselves would have no faith in and no respect for the decisions of the court, the very institution they served.
Until and unless those entrusted with the selection of judges and JCs hold fast to the principles of justice and fair play, the government's effort to improve the judiciary and the prime minister's aim of "1Malaysia, People First, Performance Now" will be nullified, as qualified candidates will be discouraged from offering their services to the courts. This will not only perpetrate a grave injustice to the candidates but also society will be so much the poorer for it.
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