On paper at least, Chief Justice Ahmad Fairuz Sheikh Abdul Halim should have no difficulty complying with procedures set out in the Federal Constitution to appoint senior judges to fill vacancies in the Court of Appeal and Federal Court.

These simply require him to submit a list of nominees to the Prime Minister, who then signals approval or otherwise. After this, the (amended) list goes to the Yang di-Pertuan Agong for assent. The appointments are then announced.

Nothing would have been simpler in any legal jurisdiction that has honoured a time-tested tradition. Until now.

On Thursday, Ahmad Fairuz will face the first test of his mettle since he was elevated to his position on March 17 - he is expected to announce the names of the judges who will fill nine vacancies in the nation's two highest courts.

Already, the rumour mill in legal circles is working overtime. Speculation has it that the CJ will appoint relatively junior judges to the posts available, leaving many lawyers disturbed and dismayed at the prospect of the judiciary being exposed to issues of credibility.

Formula for credibility

When contacted, former Lord President Saleh Abas said the appointment and promotion of judges is based on a simple formula: integrity and competency.

He said these were the two main values which he himself had looked for in any judge before he made a recommendation on the appointment.

The issue of seniority is only given consideration when the judge's integrity and competency are at par, he added.

To date, any controversy on judicial appointments in Malaysia has mainly been debated in private. On rare occasions, senior lawyers like Raja Aziz Addruse and Karpal Singh have boldly gone on record with strong statements.

Few could forget the criticism levelled by Raja Aziz who had questioned the appointment of Ahmad Fairuz as Chief Judge of Malaya in 2001.

Karpal, meanwhile, has repeatedly reminded the judiciary to appoint judges on merit and seniority.

He fired his most recent salvo on July 7, when he publicly supported the Bar Council position on the need for greater transparency on judicial appointments.

Bar chairperson Kuthubul Zaman Bukhari is aware that the decision to take a stand has been creating ripples ever since his statement was reported on July 5.

He had said the council would call for an extraordinary general meeting in the event that senior judges are bypassed, and stressed the importance of a "merit-based selection process" with a sufficient degree of transparency and objectivity in full consultation with stakeholders.

Kuthubul also pointed out the importance of freeing the process of judicial promotions from any perception of favouritism or being linked to reward to a select few. It was the strongest such statement by the Bar to date.

Malaysiakini has learnt that it was produced after lengthy discussions among committee members, who felt a need to state their concern over the possibility that senior and competent judges may be sidelined in the promotion exercise.

'Never so blatant'

What sets this likely scenario apart from disapproval over certain promotion exercises of the past is hat Ahmad Fairuz took up his position as CJ at a time when confidence in the judiciary is at a historic low.

This was in no small part due to public perceptions of the way the trial of former deputy premier Anwar Ibrahim for corrupt practice and sodomy had been handled.

After the efforts of predecessor Mohamed Dzaiddin Abdullah in improving the image of the judiciary, lawyers would have been hoping for the makeover to be continued. However, news of the impending promotion exercise has cast a shadow over this.

When contacted, Kuthubul confirmed that the speculation was based on rumours that "certain junior judges" are being tipped to fill the vacancies.

"We do not know how reliable the sources are but the names mentioned caused uneasiness among us," he said.

After the matter was raised for discussion at a committee meeting, members decided to take the pro-active measure of placing their concerns on record.

"Of course, if the rumours are true, it would not be the first time a junior judge is elevated. Previously, though, it was never as blatant as this (if it happens)," he said.

Kuthubul said the Bar's stand has been forwarded to Ahmad Fairuz who, however, had claimed that he had not received any confirmation from the Prime Minister's Department on the elevation of judges.

However, malaysiakini was unable to obtain verification of this from the CJ's office.

Differing opinions

Reaction to the Bar's statement has varied among the lawyers contacted, with the majority supporting the stand.

Lawyer Amer Hamzah Arshad lauded the Bar's move to issue the statement, saying it reflects worry that judges may not be appointed based on merit and seniority.

"It is a good pre-emptive measure to ensure that any appointment will be handled with care. Although there are only rumours at present, we still want to raise the matter," he explained.

"From the names that are being circulated, those likely to be appointed are really junior judges. If such moves are not checked, confidence in the judiciary would be further undermined."

A senior lawyer, who is in the dissenting minority and who requested annonymity, questioned why a stand had been made based on rumours.

"Of course we would be upset if the appointments do not follow tradition. In this country, too, rumours often become true. Nevertheless, I feel that the Bar could have done things differently," he said.

"It should not have issued a general statement. It could have organised a seminar or talk to raise the issues for discussion and consensus. The resolution could then have been made public."

However, another senior lawyer said the Bar's statement is appropriate and that lawyers' fear of questionable appointments and promotions is valid.

"One just has to look back at history and see that the appointment of judges are somewhat linked to their attitude towards the ruling party. So any appointment or elevation does seem to be a reward," he said.

'Anwar factor'

The lawyer, who declined to be named, further claimed that aspects of the 'Anwar factor' could be behind the expected promotion exercise.

Said the lawyer: "When Anwar was charged, the judge who was supposed to hear the case was K C Vohrah, but he was transferred days before the case was to be heard.

"Vohrah was replaced by S Augustine Paul who went against every single principle he had written in his book on law of evidence, to convict Anwar.

"The late Mohtar (Abdullah) - the former Attorney-General - who headed the prosecution team was made a Federal Court judge, while Abdul Gani Patail who assisted Mohtar was appointed the AG.

"Ahmad Fairuz, one of the three Court of Appeal judges who had confirmed Paul's decision, was made the Chief Judge of Malaya.

"One may argue that all this was coincidental, but no one can deny these are rather suspicious circumstances."

The lawyer claimed that the promotion exercise could affect the way Anwar's application for a review of his sodomy conviction may be handled when the case comes up soon.

In fact, the case itself may be one reason why the promotion exercise is being considered. At present, only two judges are qualified to hear the application - Federal Court judges Abdul Malik Ahmad and Siti Norma Yaakob, the lawyer noted.

The remaining judges in the Federal Court have all been involved in the Anwar trials at different levels.

Said the lawyer: "Abdul Malik and Siti Norma are highly respected and known to be no-nonsense judges.

"So, my guess is that judges to be elevated to the Federal Court could be those known to toe the line, in order to 'balance' the judgment."

Intriguing as the guessing game may be, the CJ would be doing both the Bar and the bench a service by putting the rumours to rest - in a way that needs no defence and in the shortest possible time.