|  The Malaysian Insider
OCT 14 - Tun Abdul Hamid Mohamed, the Chief Justice of the Federal Court, will be retiring in a few days. His retirement will bring to close a career spanning almost 30 years in the Malaysian Legal and Judicial Service and the Bench. I wish him happy retirement.
Hamid’s appointment as the head of the judicial branch was an eventful one. Unlike others, it was the result of the Conference of Rulers becoming more assertive in the exercise of the collective constitutional powers of the Rulers. Many in the legal fraternity heralded this development. Apart from the political implications of this new found role of the Conference of Rulers, Hamid’s appointment had another noteworthy historical significance.
For the first time, the heads of the three branches of government hailed from a single state - Penang. Prime Minister Datuk Seri Abdullah Ahmad Badawi, the head of the executive, was born in Kepala Batas, Penang; Hamid, the head of the judiciary, was also born in Kepala Batas, Penang; and Tan Sri Dr Abdul Hamid Pawanteh, the head of the legislature, was born in George Town, Penang. Tun Hamid and Tan Sri Hamid went to the same school, St Xavier's Institution, while Abdullah attended Bukit Mertajam High School.
However, the impending retirement of both the Chief Justice and the Prime Minister is about to change this equation. The main political players have agreed on the new chief executive. Barring the unforeseen, the nation will have Datuk Seri Najib Razak as the next Prime Minister. However, the process to appoint the successor to Tun Hamid as the Chief Justice is still being worked through.
Constitutionally, this process starts with the present Chief Justice making his recommendation to the Prime Minister, who in turn will advise the Conference of Rulers on the suitable candidate. The Yang di-Pertuan Agong will then make the appointment upon the advice of the Prime Minister with the concurrence of the Malay Rulers.
Though the selection process is confidential, in the best traditions of Malaysian soothsaying, several names have been bandied about. Tan Sri Zaki Tun Azmi, the President of the Court of Appeal; Tan Sri Alauddin Mohd Sheriff, the Chief Judge of Malaya; and Federal Court judge Datuk Ariffin Zakaria are reportedly the front runners.
Alauddin and Arifin were both career officers from the Judicial and Legal Service before their elevation to the bench. Zaki served for a while in the Judicial and Legal Service before going into private practice.
Zaki had a successful law practice and was for many years the principal legal counsel for Umno and had also served on the party’s Disciplinary Committee. He holds the singular distinction of being the only member of the Bar to be elevated straight to the Federal Court. However, Zaki’s elevation and his subsequent appointment as President of the Court of Appeal were opposed by some, mainly politicians across the aisle. Their concerns were mostly related to Zaki’s political affliliation.
The Bar Council, while congratulating Zaki, noted that: “There are the added concerns of his previous business interests and his involvement in Umno. We trust these concerns will be dispelled by a display of integrity and exemplary performance on the bench by Tan Sri Zaki. Society must be left in no doubt that the Judiciary is free from any allegiances or alliances and that it is above reproach in all respects.”
To date, there has not been any indication that Zaki’s conduct on the bench has been anything but exemplary. There has not been an occasion where his previous political affiliation or business interest has in anyway influenced his judgment; nor has there been any evidence of partisan politics at play in the current workings of the Judiciary.
In an ideal society, the doctrine of separation of powers would demand that the various branches of government are independent of one another. But we do not live in an ideal world. Judges too are political actors in the administration and governance of a nation. Every one of us would have some political inclination. We may not be card carrying members of political parties, but we are not devoid of some political inclination; be it as a liberal democrat, socialist, republican or some other political persuasion.
It is not uncommon for politicians to assume judicial office. The Republican politician, William Howard Taft, who was elected the 27th President of the United States, subsequently became the 10th Chief Justice of the Supreme Court having been nominated by another Republican President, Warren G. Harding, and confirmed by the US Senate.
In fact, presently in some states like California and North Carolina, the State Supreme Court judges are elected by the electorate in a general election. Candidates can and do run along party lines and partisan politics. A lawyer I met during a recent visit to the United States told me that when elections for the judges began, he gave US$200 in campaign contribution to each of the candidates in order to hedge against any fallout at future appearances before the victorious candidate. I found the spectacle of judges canvassing for votes from lawyers highly amusing.
On the other hand, in the state of Nebraska, I found that the State Supreme Court judges were appointed by the Governor for six years and are reconfirmed every six years in a referendum by the electorate. Here, the system allowed the electorate to act as a check and balance on executive power. However, a populist judge need not necessarily be the best in administering and dispensing justice.
No one system is perfect. They have their advantages and pitfalls. The system is only as good as the people who administer it. The selection process must be able to weed out the incompetent and unqualified. However, to dismiss a person’s qualification to hold judicial office based merely on political affiliation is unconstitutional and would set a dangerous precedent. Political preference, or affiliation, cannot be a bar to employment. *Vazeer Alam Mydin Meera was a Bar Council treasurer and also former chairman of the Kedah/Perlis Bar. |
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