Judicial promotions: Seniority, anomalies
Malaysiakini, Aug 29, 07 6:53pm

'Lazy judges' and 'leapfrogging' have become common terms when
describing the appointment and elevation of judges in the country.

The current allegations that Chief Justice Ahmad Fairuz Sheikh Abdul
Halim had promoted incompetent judges who have bypassed more senior
judges adds fuel to the debate that the judiciary is in a spiral of
decline.

Fairuz had argued that promotions and appointments were based on
meritocracy but not necessarily work-related.

Other factors taken into consideration include people whom judges
socialised with, their personal life, how they presented themselves
in public and their judicial temperament.

With this, malaysiakini decided to delve into the Current Law Journal
- the authoritative journal which publishes court judgments - to look
at the seniority and the number of written judgments made by current
and previous judges appointed by the CJ.

Leapfrogged into Federal Court

In terms of seniority, Court of Appeal Judge Gopal Sri Ram is the
most senior in the two appellate courts as he began his duties in the
country's second highest court in August 1994, exactly 13 years ago.

Gopal is known for his well-written but controversial judgments
including the Metramac judgment in which he stated that high profile
businessman Halim Saad had siphoned RM32.5 million from the toll
operator, and that he had enjoyed former finance minister Daim
Zainuddin's patronage.

In May 2006, he ordered former deputy premier Anwar Ibrahim's adopted
brother Sukma Darmawan Sasmitaat Madja to be re-tried for a sodomy
offence.

In 1994, then a senior lawyer, Gopal was appointed directly into the
appellate court - bypassing the High Court - by then chief justice
Eusoff Chin.

Since then, the country had seen 14 junior judges promoted over Gopal
to the Federal Court - the nation's highest court.

This included Justice Augustine Paul, who had sentenced Anwar to nine
years' jail for corrupt practices.

Another was Pajan Singh Gill (who has since retired), who had upheld
Anwar's sodomy conviction, which was later overturned by the Federal
Court.

These promotions were labelled as 'golden handshakes' by former
United Nations Special Rapporteur on the Independence of Judges and
Lawyers Param Cumaraswamy in a letter which he wrote to Ahmad Fairuz.

"Their promotions supercede other more senior judges in the (courts)
[...] they will be perceived as being rewards for having 'delivered'
in the Anwar trials and appeals," he wrote in 2003.

While most judges averaged three to seven years for promotion into
the Federal Court, two judges took one year each before being elevated.

Justice Gill entered the Court of Appeal in August 2002 and was
elevated to the highest court exactly a year later.

Also promoted to the apex court after a year in the Court of Appeal
was Azmel Haji Maamor who presided notably in the appeal of business
tycoon Eric Chia.

All 10 judges currently sitting in the apex court were promoted
before Gopal during Ahmad Fairuz's reign as CJ.

Written judgments don't matter

Malaysiakini also looked into the number of written judgments listed
in the Current Law Journal (CLJ) by existing and recently retired
judges to see if it is a factor as far as promotions are concerned in
light of recent allegations that Federal Court judge Hashim Yusoff
failed to write judgments.

Hashim has been accused for failing to write judgments in 35 cases,
including four in which the convicted are languishing in jail despite
being sentenced to death seven years ago.

Malaysiakini's research showed that Hashim's name appeared only 13
judgments in the High Court. However, CLJ listed only seven High
Court judgments under Ahmad Fairuz name between 1990 to 1999.

Despite deciding on a small number of High Court cases, Ahmad Fairuz
clocked in the most Court of Appeal cases at 157, followed by
Alauddin Mohd Sheriff with 103 (these are combined figures on the
number of cases sat before and after being promoted to the Federal
Court). [See chart]

Alauddin is today tapped as the Chief Judge of Malaya - the
judiciary's No 3 post.

Meanwhile, judges with the least number of Court of Appeal cases
listed Paul with 34 cases and Azmel Maamor with 43 cases.

The research also revealed a major discrepancy in the number of cases
decided in the High Court by the current Court of Appeal judges
before promotion. [See chart]

CLJ listed Justice Tengku Baharudin Shah Tengku Mahmud as the judge
with the least number of cases with seven written judgments between
1998 to 2003.

He is followed by Hasan Lah (14 judgments) and Ahmad Haji Maarop (26
judgments). Both sat in the High Court for five to six years.

Meanwhile Low Hop Bing presided in a whopping 543 High Court cases
before being promoted in July last year. He's followed by Abdul Malik
Ishak with 448 cases listed.

From the quantitative analysis, it shows that there is no set
formula when promoting judges whereby the number of judgments and
seniority are not persuasive criteria.

Seniority should be first criteria

Malaysian Bar president S Ambiga stressed that seniority must be the
first criteria that the CJ must consider when promoting judges.

"Seniority means experience and experience means ability. We see
seniority as a starting point and of course other factors can be
taken into account.

"But there must be certain guidelines to such promotions like
competence, legal ability, intellectual honesty, impartiality,
judicial temperament, diligence in judgment writing and
independence," she said.

She opined that problems surrounding appointment and promotions of
judges can be solved by setting up a judicial commission.

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