Chen Mian Kuang perceptively and properly questions the manner in which court administrative decisions, such as deciding the panel of judges and when a matter is heard urgently, are made especially since they are not subject to any appeal or review by any other forum.
Recent events have put the public spotlight on a type of court decision that is not subject to appeal, namely administrative decisions.
One example of an administrative decision is the assessment of how urgently an application needs to be heard and what hearing date to be fixed for it. In the much publicized case of Datuk Dr Zambry Abdul Kadir v Datuk Seri Mohammad Nizar Jamaluddin, the appellant (Zambry) managed to procure a hearing before the Court of Appeal for his application to stay the decision of the High Court within 3 hours of filing his application. This speed is previously unheard of. In contrast, the respondent’s application to set aside the stay granted by a single Judge of the Court of Appeal was fixed for hearing 5 days after filing. Then the original hearing date was subsequently postponed by the Court of Appeal on its own motion.
The new hearing date for the application is the same as the hearing date for the appeal proper. Given this situation, practical considerations of saving time and costs would require that the appeal proper be proceeded with and the application to set aside the stay taking a backseat. (This is because the stay is a stay pending the outcome of the appeal. The stay order lapses once the appeal is decided. Since the appeal can be heard on the same day, and perhaps decided on quickly, it becomes pointless to argue for the stay to be set aside). In the upshot, it is likely that the stay decision would escape review and scrutiny by a full bench of the Court of Appeal.
Another example is the selection of judges in the appeals court panel to hear cases. The panels in the Federal Court (FC) and the Court of Appeal (CA) usually consist of 3 judges. In every week, there are generally 2 – 3 panels in the CA and FC who sit to hear cases. The cases for the week are distributed among the panels. It is not known who exactly selects the judges and distributes the cases to each panel. As for the selection criteria, lawyers know that the judge who made the original decision will not be on the appellate panel. But this is a negative selection criteria as opposed to a positive one. For example, there are 8 judges who can potentially be on the appellate panel. One of them made the original decision which is now appealed against, so he is disqualified from sitting in the panel. That leaves 7 judges. How are 3 judges picked out of the 7? What principle of selection is applied?
It will be most useful if the courts can publicise their principles of selection and disclose how they are operated in every instance. In view of the current low level of public confidence in the judiciary, such publication and disclosure is necessary to demonstrate transparency and dispel any potential allegation of judge choosing in controversial cases involving the government and the ruling coalition. Transparency of procedure is even more critical when litigants have no avenue of appeal against such administrative decisions.