19 July 2017
___________________________________
THE recent furore about the appointments of
the Chief Justice of the Federal Court and the President of the Court
of Appeal is a bit confusing. Yes, I know, for someone in my profession,
this is not a wise confession to make. But hey, I never said I was
smart.
There are some sounds being made that the appointments of these two men will lead to a constitutional crisis similar to the one that struck our judiciary in 1988. Perhaps it will, but I seriously doubt it would capture the imagination in the same way.
You see, the 1988 crisis, where the Lord President (as the Chief Justice was then called) was sacked and five other judges were suspended, was a pretty clear-cut story.
The bad guys and the good guys were more easily identifiable. The Lord President was sacked for trying to defend the integrity and independence of the judiciary.
The grounds used to sack him were tenuous and the decision was
made by a tribunal headed by a person who would take over the post of
Lord President if the incumbent was dismissed. Conflict of interest,
anyone?
The fingerprints of the Executive were all over this fiasco. The courts had made several decisions not in favour of the ruling party in that time period and the Prime Minister at the time was having none of it.
Thus we see not only an unjust procedure being used, we also see the erosion of the separation of powers between the Executive and the Judiciary.
The situation before us now is slightly more subtle than that.
To the best of my ability, I believe that what it boils down to is this.
The new Chief Justice (CJ) and President are not young. In fact, they turned 66 this year. The retirement age of a judge is 66 years, with a possible extension of six months.
Not a very pleasant combination of numbers, but what can you do?
Anyway, since they were both appointed this year, it would seem that their tenures would be fairly short indeed. So far, so uncontroversial. But the thing is, they are now going to be serving a term that goes beyond their maximum retirement age. How is this possible?
The Constitution does provide that an ex-judge can be appointed as an “additional judge” even if they are above the maximum age. What the previous CJ did, before his retirement, was to recommend to the King the appointment of the two men as “additional judges”.
This is a bit weird because the CJ and the President were still in active duty when the last CJ appointed them as additional judges.
The wording of the Constitution is unclear on whether the CJ can recommend additional judges in advance.
If this is allowed, then it means that a CJ can have power and influence even after he has retired.
Imagine a boss calling the shots even though he or she is on pension and sitting on a beach in Phuket. Like I said, it is weird.
Furthermore, the Constitution states that an additional judge is someone who “has held high judicial office”. The key term here is “has held”.
This implies that additional judges are to be appointed from those who have retired and a CJ who wishes to appoint such judges can only look to the pool of ex-judges. Is it possible, therefore, to make the decision to appoint people when they have not yet retired?
It is not for me to guess what the previous CJ was thinking when he made these decisions. After all, we are not buddies and I have never spoken to him. Therefore, it would be folly for me to make any wild guesses.
But what I will say is that whether they like it or not, the judiciary has suffered from a lack of public confidence – a cloud that has never totally dissipated since 1988.
It is imperative, therefore, that things are done in a manner that closely adheres to the Constitution and does not raise any question as to motivations and agendas.
The judiciary does not need such things and neither does the nation.
There are some sounds being made that the appointments of these two men will lead to a constitutional crisis similar to the one that struck our judiciary in 1988. Perhaps it will, but I seriously doubt it would capture the imagination in the same way.
You see, the 1988 crisis, where the Lord President (as the Chief Justice was then called) was sacked and five other judges were suspended, was a pretty clear-cut story.
The bad guys and the good guys were more easily identifiable. The Lord President was sacked for trying to defend the integrity and independence of the judiciary.
The fingerprints of the Executive were all over this fiasco. The courts had made several decisions not in favour of the ruling party in that time period and the Prime Minister at the time was having none of it.
Thus we see not only an unjust procedure being used, we also see the erosion of the separation of powers between the Executive and the Judiciary.
The situation before us now is slightly more subtle than that.
To the best of my ability, I believe that what it boils down to is this.
The new Chief Justice (CJ) and President are not young. In fact, they turned 66 this year. The retirement age of a judge is 66 years, with a possible extension of six months.
Not a very pleasant combination of numbers, but what can you do?
Anyway, since they were both appointed this year, it would seem that their tenures would be fairly short indeed. So far, so uncontroversial. But the thing is, they are now going to be serving a term that goes beyond their maximum retirement age. How is this possible?
The Constitution does provide that an ex-judge can be appointed as an “additional judge” even if they are above the maximum age. What the previous CJ did, before his retirement, was to recommend to the King the appointment of the two men as “additional judges”.
This is a bit weird because the CJ and the President were still in active duty when the last CJ appointed them as additional judges.
The wording of the Constitution is unclear on whether the CJ can recommend additional judges in advance.
If this is allowed, then it means that a CJ can have power and influence even after he has retired.
Imagine a boss calling the shots even though he or she is on pension and sitting on a beach in Phuket. Like I said, it is weird.
Furthermore, the Constitution states that an additional judge is someone who “has held high judicial office”. The key term here is “has held”.
This implies that additional judges are to be appointed from those who have retired and a CJ who wishes to appoint such judges can only look to the pool of ex-judges. Is it possible, therefore, to make the decision to appoint people when they have not yet retired?
It is not for me to guess what the previous CJ was thinking when he made these decisions. After all, we are not buddies and I have never spoken to him. Therefore, it would be folly for me to make any wild guesses.
But what I will say is that whether they like it or not, the judiciary has suffered from a lack of public confidence – a cloud that has never totally dissipated since 1988.
It is imperative, therefore, that things are done in a manner that closely adheres to the Constitution and does not raise any question as to motivations and agendas.
The judiciary does not need such things and neither does the nation.
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