Tan Sri Zaki Tun Azmi’s appointment as Chief Justice of the Federal Court is the most controversial appointment of the head of the judiciary in the nation’s 51-year history.
Never before in Malaysian judiciary had the possible appointment of the new head of the judiciary been marked by more widespread reservations and public objections than Zaki’s elevation as Chief Justice, because of legitimate concerns about its adverse impact on fumbling efforts so far to restore national and international confidence in the independence, impartiality and integrity of the judiciary.
This was because of two reasons:
· Firstly, Zaki’s quintuple or five-step jump up the judicial hierarchy in slightly over a year, being appointed straight to the Federal Court without any earlier appointment as High Court Judge and Court of Appeal Judge, then elevation as Court of Appeal President and now Federal Court Chief Justice; and
· Secondly, Zaki’s close and long association with UMNO as UMNO lawyer both for the party and its very intricate and complex corporate network and affairs, as well as head of UMNO disciplinary board.
In the past two decades after the arbitrarily sacking of Tun Salleh Abas as Lord President in the 1988 “Mother of Judicial Crisis”, the country has had five heads of the judiciary.
Unfortunately, three of the five, Tun Hamid Omar, Tun Eusoff Chin and Tun Ahmad Fairuz had mired the judiciary and country even deeper in national shame and international infamy – making efforts to restore national and international confidence in the independence, impartiality and integrity of the judiciary and return to its previous high international esteem a most Herculean one.
This is why for instance the latest survey among expatriate business executives in Asia by the Hong-Kong based Political and Economic Risks Consultancy (Perc) last month found that Malaysia lagged behind even South Korea, Taiwan and the Philippines on which Asian country has the best judicial system. Malaysia was ranked seventh while the first three places went to Hong Kong, Singapore and Japan.
Yesterday, a local survey of lawyers’ perception of the judiciary conducted by Transparency International Malaysia (TI-M) gave a grim picture of the state of public confidence in the judiciary.
According to findings of a survey of 339 lawyers conducted in March and April, the judicial process and judicial appointments are greatly subject to undue influence and judicial authorities subject to corruption and bribery.
From the survey, 91% felt that the judicial process in the superior courts (High Court, Court of Appeal and Federal Court) was subject to various levels of undue influence from the Government or others.
As to whether judicial authorities were susceptible to accepting bribes to give favourable judgments, 94% said yes.
However, only 15% thought they always took bribes.
The survey also found that 96% thought judicial appointments were subject to influence.
The Prime Minister, Datuk Seri Abdullah Ahmad Badawi had promised judicial reform to top his final short-list of three reforms, but it is like shutting the stable door after the horses have bolted to now talk about a Judicial Appointment Commission when Zaki’s appointment as Chief Justice had been made without any nod or concession to the spirit of judicial reform.
With the most controversial appointment as head of judiciary in nation’s 51-year history now a fait accompli – the question is whether Zaki will vindicate all doubters with the worst-scene judicial scenario or he would prove them wrong by providing bold and visionary leadership for judicial reform in the next five years.
Objectors to Zaki’s fast-track appointment as Chief Justice have two options: firstly to invoke Article 127 of the Constitution to move a substantive motion in Parliament with the support of at least one-quarter of Members of Parliament, i.e. 55 MPs to discuss Zaki’s appointment; or two, to give Zaki the opportunity to acquit himself and prove that he is capable of taking full account of the widespread reservations about his appointment to the process to restore public confidence in the independence, impartiality and integrity of the judiciary after two decades of judicial darkness.
I am inclined to the latter but a public debate on the best option before the country in the challenge to restore national and international confidence in the independence, impartiality and integrity of the judiciary would be useful, pertinent and timely.