V Anbalagan | December 7, 2016
Judicial independence may be questioned if appointed Judicial Commissioners are seen favouring the establishment to win confirmation, says retired judge Gopal Sri Ram.
PETALING JAYA: Another retired judge has come out in support of the suggestion that the appointment of Judicial Commissioners (JCs) be stopped as its original objective is no longer followed.
Gopal Sri Ram, a former Federal Court judge, said many had forgotten that JCs were appointed to dispose of a huge list of cases back in the 1970s.
“So, in 1976 the Federal Constitution was amended, vesting power in the then Lord President to appoint JCs to clear the backlog,” he told FMT.
Sri Ram said this in response to the support of his former colleague Mohd Hishamudin Mohd Yunus for a proposal last week by former de facto law minister Rais Yatim that judges’ retirement age be extended but the appointment of JCs be abolished.
Hishamudin, a former Court of Appeal judge, said JCs did not enjoy security of tenure and therefore might not be perceived as being fully independent.
Sri Ram said the system was stopped but the appointment of JCs on a trial basis was recommenced in the early 90s. However, these judges were no longer arbiters appointed merely to clear the backlog.
“They are in fact judges ‘on trial’. This is not a good thing because the confirmation process is held either as a carrot or a stick to see how the individual performs,” he said.
Sri Ram, a lawyer who was the first to be elevated straight to the Court of Appeal in 1994, said this might have the effect of forcing an individual to produce sub-standard work at a quickened pace just to show results.
He said he recalled one JC who had kept striking out cases for the flimsiest of reasons and then showed all these as disposals.
On the other hand, he said there might be a JC who worked hard to dispose only a handful of cases but produced well argued judgments.
“He/she will be punished because on the face of his record, the JC will be seen to have disposed of only a few cases. This is grossly unfair,” he added.
He said in the past there were judges who were fiercely independent and should have found their way into the Federal Court by leaps and bounds but they all retired in the Court of Appeal because of extended terms in the High Court, first as JCs and then as judges.
“There are some who hold the view that these people suffered because they did precisely what is expected of a judge,” he added.
On the other hand, he said, there were some cases of speedy transformation from JC’s to judges, and even speedier promotions because there appeared to be a noticeable leaning in favour of those in government.
“This is not good for the judiciary because it may create the wrong impression that you will move on speedily if you decide in favour of the executive or its members,” he added.
Sri Ram also cautioned that the appointment of JCs was liable to be misused by making the judiciary the dumping ground for members of the Judicial and Legal Service who could not perform.
“As a result, we sometimes see JCs who do not know the difference between a writ and a rut. Some of them are even confirmed on sympathetic grounds, thereby placing the justice system at risk,” he said.
He said the legal fraternity then would end up with judgments that make no sense and in violation of settled principles of law.
“The quality of the judgments from the courts will fall. In some cases this has already happened,” he added.
~ Free Malaysia Today