General & Misc

Seniority Should Be the Overriding Factor in Elevation of Judges

Date: 29 November 2018; Type: Industry Updates; Source: Malaysian Bar

The Malaysian Bar has congratulated the four Judges who were elevated to the Federal Court and the five Judges who were elevated to the Court of Appeal, on 26 November 2018, and wished them all the very best in their new positions in the Judiciary.

The Malaysian Bar has also welcomed the increase in gender and ethnic representation among the Judges of the appellate courts resulting from these elevations, and said they have frequently advocated greater inclusivity and diversity in the appointments and promotions of Judges.

They have also noted, however, that several Court of Appeal Judges and High Court Judges who rank higher in terms of seniority have been bypassed for promotion, for unknown reasons. They also said that they although they do not question the abilities, capabilities or suitability of the Judges who were elevated, they are more concerned that the omission of the more senior Judges may invite an adverse perception of the Judiciary as a whole.

The Malaysian Bar said they have 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. Until such reform takes place, seniority should be the foremost criterion in any promotion exercise. 

"The bypassing of more senior Judges does a significant disservice to the Judiciary because it lends to the negative inference that these Judges are deemed to be less qualified or less suitable for promotion. The uncertainty Judges face about their future does little for the morale of judicial officers who have made a commitment to a career on the Bench. It also does little to dispel unnecessary and unhealthy speculation about promotions, which is unfair to those who are promoted. All this does not augur well for public confidence in the Judiciary and the administration of justice and would be inimical to the public interest.", said the Vice President of the Malaysian Bar

The Malaysian Bar has also welcomed the statement made in the press release issued by the Office of the Chief Justice of the Federal Court of Malaysia on 26 November 2018, that “[T]he “Malaysian Judiciary will not countenance any judicial interference of whatsoever nature by anyone, especially by judges in the disposal of cases before the court”. Judicial independence is sacrosanct, and even a mere spectre of judgments being tainted by undue pressure is cause for grave concern. 

The Malaysian Bar Vice President continued that the organization is deeply troubled by the allegations of judicial interference that have been raised by a Judge of the Court of Appeal, and by a Member of the Bar. The abovementioned press release stated that the Judiciary, in its internal investigations, was “not in a position to make a definitive finding” (in the former case), and had to suspend its inquiry (in the latter case). In light of these inconclusive outcomes, he reiterated the call for a Royal Commission of Inquiry (“RCI”) to be established without delay, to investigate these serious assertions of judicial misconduct as well as to recommend holistic reforms to improve and strengthen the Judiciary.

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