As a starting point, the Malaysian Bar has no lawful part to play in the appointment or the removal of judges. They have no mandate in this regard as far as the Constitution is concerned.
It is up to Parliament and Parliament alone as to how the appointment and removal of judges is made.
To that extent parliament’s position whether through the office of the prime minister or a collective decision of cabinet is mandated by the Constitution.
The Malaysian Bar has an intrinsic role to play in the appointment of judges to the extent that judges are appointed from their ranks.
If there is dissatisfaction about the quality of appointments to the bench, then it is incumbent on the Bar to ensure the continued improvement in the quality of their members whilst they serve at the Bar.
The recent upheavals and treacherous conduct of prominent members of the Malaysian Bar including past presidents and retired judges engaging in partisan political activities, bringing government and the courts into disrepute with their comments on and off the course, is but one example of where the lines are often blurred on the question of Constitutional interpretation and judicial independence.
The Constitution does not proscribe the extension of the term of a Chief Justice or any other judge or limit their tenure of office to time alone.
The prohibition set out in the Constitution as some lawyers argue is the case is in fact nothing but a limit parliament has set which for the time being is allocated to the term a judge may sit on the bench.
It says nothing explicit that prohibits extension of tenure.
The present argument is about tenure and term. If a government (Parliament) has the power to reduce or limit the term of judicial appointments, it could also if not expressly stated, then by inference extend, vary and amend that same term.
The Constitution does not imply or suggest anywhere that Parliament may not reappoint a judge or extend his term in office beyond retirement age.
After all it was not so long ago that judges were appointed for life (on good behavior). Good behavior remains a condition of holding judicial office.
It means a judge’s term in office may be curtailed or determined on bad behavior. Parliaments in Malaysia, Australia and the UK have long since changed that term of life by amending their Constitutions.
The current imbroglio over judicial reappointment at the end of their term is a manufactured Constitutional ‘crisis’ engineered by elements within the Malaysian Bar.
They provide no convincing legal, Constitutional or rational argument or authority for their proposition.
All that they do is to invite the inference that they are steadfastly and doctrinally anti-government regardless of whether or not what government does is productive or beneficial to a particular situation.
Clearly that’s unsatisfactory of their conduct. This argument is about judicial appointments.
More specifically this is about judicial reappointment or extension of tenure of the Chief Justice and Court of Appeal President.
It appears to be more of an assertion or expression of authority by the Bar it is not possessed of under the Constitution.
It is further an attempt by the same Bar to appropriate to itself a ‘right’ to unilaterally impose on parliament the way in which the Constitution ought to be read and interpreted in such situations.
The Bar ought to be more circumspect as to how it interprets the doctrine of separation of powers and that of judicial independence.
These are two points they raise against the re appointment of the Chief Justice and Court of Appeal President.
Judicial independence is not merely the idea that the judges are independent of parliament (which they never will be) or the executive branch of government.
The doctrine of judicial independence also requires judges to be independent of their own personal, political, religious, and moral beliefs.
It also means they should be independent of the pressures of unjust criticism by the media and other bodies at the forefront of which is the Malaysian Bar.
Low Bee Lian J a proselytising Christian judge on the bench in her egregious decision in the ‘Allah’ matter (Catholic Herald) is an example of the frailty of the doctrine of judicial independence where it intersects with personal religious beliefs in a matter.
The Bar said nothing about it then. Judges ought to be free to carry out their work without the pressures of uninvited external opinions and unwarranted criticisms.
The appellate courts are there to perform the tasks of over sight and criticisms of judicial work. Appointments to the bench on the other hand are Parliament’s job.
George Varughese is scaremongering by suggesting that if in the unlikely event the re appointments of Chief Justice and Court of Appeal President’s extended tenures are found to be unconstitutional it could have ramifications on the judicial decisions of the appointees.
That’s absurd a proposition to say the least. Judges are judges. And if their decisions are found to be controvertible for any reason, the appellate jurisdictions are the place for their decisions to be reviewed.
The decisions of former Chief Justice Tun Fairuz and that of former Justice Salleh Abbas on their leaving office did not attract a tsunami of reviews or appeals unless Varughese knows otherwise.
The fact that governments throughout the world influence the appointment of judges in one way or the other is indisputable.
To suggest the opposition in the unlikely event of becoming government one day will not have a say in the appointment and dismissal of judges during their term in office is to be in denial.
Perhaps the Malaysian Bar as an unregistered political party should wait their turn in office to demonstrate their ideas of ‘fairness, constitutionality and judicial independence’ when that time comes. For as Abraham Lincoln said: “to test a man’s real character, you give him power”.
On a final and parting note, the threat to exclude the two appointee judges from social events with the Malaysian Bar is a radical and unprecedented act on the part of the Malaysian Bar which deserves the condemnation of all.
It flies in the face of the Malaysian Bar’s claims to supporting the doctrine of judicial independence and the dignity of the courts (acting without fear and favour).
The gravest of their misconduct lies in the threats to snub the two judges excluding them from certain social functions.
This threat unless withdrawn with an unconditional apology compels the current board of the Malaysian Bar to resign.