Counting on character and other checks
Gim TanPublished: Jan 30, 2001 6:29 AM | Updated: Jan 29, 2008 6:21 PM
I refer to the letters from Keenan Ong ([#1]Every breath Mohtar takes[/#], Jan 29) and Fahri Azzat ([#2]Appointment a disappointment[/#], Jan 29) concerning the appointment of Mohtar Abdullah as a judge of the Federal Court.
I wish to correct the perception held by Fahri that the appointment of a former Attorney-General breaches the Rule of Law. The concept of the Rule of Law means that no one is above the law and that all persons are subject to equal treatment by the law, i.e. no favouritism in prosecution etc... . His appointment in no way breaches this concept.
In fact, in such bastions of democracy like Australia and even the United States, it is not uncommon for the AG or in the case of the US (Solicitor-General because the AG's post is a political post) to be appointed to the highest court in the land. An example is the appointment of Garfield Barwick, who was AG, as Chief Justice of the High Court of Australia (Australia's highest court). And this has been replicated in other State courts in Australia as well (another example is the appointment of Len King, AG of South Australia as CJ of the South Australian Supreme Court).
In fact, Malaysia has done so before with the appointment of Tun Salleh Abas as Lord President, when he was formerly the SG. Generally governments are loathe to make such appointments because it tends to be viewed as being political in nature.
With respect to the perception of bias that Keenan rightly points out, judges have the duty to recuse themselves from hearing such cases in which they have been involved with whether arising from their capacity as private practitioners or as government lawyers. If they do not, bear in mind that this is the Federal Court and not High Court of Malaya, the other two judges sitting with him or her can indicate to their brethren their displeasure that (s)he is hearing the case. Of course, it all depends on the character of the person and the subtle political dynamics in the court.
A recent example was the pressure brought to bear by the six Justices of the High Court of Australia in the case of [#3]Kartinyeri v Cth[/#] on their fellow Justice to recuse himself from sitting in this case after he had made some remark when he was a private practitioner, which the plaintiff alleged created a perception of bias in favour of the Cth. The six Justices heard the application brought by the plaintiff's lawyers to seek the removal of that Justice from hearing the case. In the end, he recused himself before the six Justices ruled on the matter.
Whilst it is certainly desirable to have non-biased judges and Justices, the crux of the matter is that it is impossible to achieve this utopian ideal. This is because the pool of eligible and willing persons is often small and because of the requirement that they be in practice for more than 10 years, conflicts of interest inevitably arise.
At the end of the day, it is the character of the person that is the test of judicial impartiality and the strength of its supporting institutions with mutual respect between the three arms of the government - Executive, Legislative and Judiciary as to their respective roles and responsibilities.
I wish to correct the perception held by Fahri that the appointment of a former Attorney-General breaches the Rule of Law. The concept of the Rule of Law means that no one is above the law and that all persons are subject to equal treatment by the law, i.e. no favouritism in prosecution etc... . His appointment in no way breaches this concept.
In fact, in such bastions of democracy like Australia and even the United States, it is not uncommon for the AG or in the case of the US (Solicitor-General because the AG's post is a political post) to be appointed to the highest court in the land. An example is the appointment of Garfield Barwick, who was AG, as Chief Justice of the High Court of Australia (Australia's highest court). And this has been replicated in other State courts in Australia as well (another example is the appointment of Len King, AG of South Australia as CJ of the South Australian Supreme Court).
In fact, Malaysia has done so before with the appointment of Tun Salleh Abas as Lord President, when he was formerly the SG. Generally governments are loathe to make such appointments because it tends to be viewed as being political in nature.
With respect to the perception of bias that Keenan rightly points out, judges have the duty to recuse themselves from hearing such cases in which they have been involved with whether arising from their capacity as private practitioners or as government lawyers. If they do not, bear in mind that this is the Federal Court and not High Court of Malaya, the other two judges sitting with him or her can indicate to their brethren their displeasure that (s)he is hearing the case. Of course, it all depends on the character of the person and the subtle political dynamics in the court.
A recent example was the pressure brought to bear by the six Justices of the High Court of Australia in the case of [#3]Kartinyeri v Cth[/#] on their fellow Justice to recuse himself from sitting in this case after he had made some remark when he was a private practitioner, which the plaintiff alleged created a perception of bias in favour of the Cth. The six Justices heard the application brought by the plaintiff's lawyers to seek the removal of that Justice from hearing the case. In the end, he recused himself before the six Justices ruled on the matter.
Whilst it is certainly desirable to have non-biased judges and Justices, the crux of the matter is that it is impossible to achieve this utopian ideal. This is because the pool of eligible and willing persons is often small and because of the requirement that they be in practice for more than 10 years, conflicts of interest inevitably arise.
At the end of the day, it is the character of the person that is the test of judicial impartiality and the strength of its supporting institutions with mutual respect between the three arms of the government - Executive, Legislative and Judiciary as to their respective roles and responsibilities.
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