My article for the Putik Lada column published in The Star on 19 December 2008:“THE Prime Minister must uphold the continued independence of the judiciary and must have regard to the need to defend that independence …”

These initial words from the Judicial Appointments Commission Bill 2008 serve as a guarantee of the continued independence of the judiciary and imposes a duty on the Prime Minister to defend that independence. The tabling of this Bill in Parliament is an acknowledgment that for too long, the present system of appointing and promoting judges is inadequate and open to abuse.

However, the question then arises whether the Bill goes far enough in ensuring the protection of the independence of the Judiciary.

The Good

The Bill proposes to establish a nine-person Judicial Appointments Commission (JAC) to select and then recommend to the Prime Minister individuals to be appointed as judges to the High Court in Malaya and in Sabah and Sarawak, the Court of Appeal and the Federal Court.

This will also include the appointment to the four highest judicial offices – Chief Justice of the Federal Court, President of the Court of Appeal, Chief Judge of the High Court in Malaya and Chief Judge of the High Court in Sabah and Sarawak.

While not explicitly stated, it also appears that the JAC will similarly select and make recommendations to the Prime Minister on the promotion of judges.

The Bill further sets out the selection criteria that must be taken into account by the JAC in selecting the candidates, for example, integrity, competency and experience, decisiveness, ability to make timely judgments and good legal writing skills.

In another move to be lauded, the Bill also disqualifies a serving judge or Judicial Commissioner from being appointed if he or she has three or more pending judgments.

Some degree of transparency is ensured through provisions dealing with the disclosure of interest by the members of the JAC and disqualification from participating in the discussion or deliberation of the JAC.

The JAC must prepare an annual report of all its activities to be submitted to Parliament, although there is no clear definition as to the exact detail of the activities to be reported to Parliament.

The Bad

The Bill, however, is silent on the obligation of the Prime Minister to consider the recommendations made by the JAC. It provides that where the Prime Minister has accepted any of the persons recommended by the JAC, he may proceed to tender his advice in accordance with the constitutional procedure for the appointment of judges set out in Article 122B of the Federal Constitution.

There is no provision dealing with a situation where the Prime Minister rejects the JAC’s recommendation.

As the Bill currently stands, there is no need for the Prime Minister to provide any explanation if he rejects the recommendations of the JAC.

Another criticism of the Bill is that it gives the Prime Minister a great deal of influence over the JAC. The Prime Minister appoints five of its nine members, namely, a Federal Court judge and four eminent persons.

While these four eminent persons cannot be members of the Executive or other public service, and there is consultation with the various stakeholders, it is the Prime Minister who ultimately appoints them; and he may also revoke their appointment at any time without furnishing any reason.

A further degree of influence is that the Prime Minister determines the allowances to be paid to the members of the JAC.

The Prime Minister is also given the power to make modifications to the Act in the first two years of its coming into force. There is little restriction on the exercise of such a power except that it is meant to be for the removal of difficulties and prevention of anomalies in the implementation of the Act.

Finally, questions remain on whether the proposed JAC framework would be constitutional. Article 122B of the Federal Constitution requires the Prime Minister to consult various parties, including consulting with the Conference of Rulers, before his advice is tendered to the King. It clearly does not provide for the JAC to provide any input in that process.

At best, the JAC may sit uncomfortably with Article 122B since it may be argued that the Prime Minister is not confined to only consulting with these parties. A constitutional amendment may be required to further codify the JAC process of the appointment and promotion of judges.

The Ugly

The Bill is a move in the right direction in safeguarding the independence of the Judiciary. However, this does not detract from the fact that further discussion is required and that certain changes have to be implemented before it is passed.

The present system vests the Prime Minister with the absolute discretion to appoint and promote judges.

The Bill, in its present form, creates a veneer of independence in this appointment and promotion process but in the end, the ultimate decision still rests with the Prime Minister.

There is a risk that the entire JAC framework, with its selection process and selection criteria, will be rendered redundant since there is no obligation for the Prime Minister to accept any of the JAC’s recommendations.

Also, question marks remain in relation to the constitutionality of the Bill. In upholding the independence of the Judiciary, the Bill explicitly imposes a duty on the Prime Minister to have regard to the need for public interest to be properly represented.

The public interest is not served through the entrenchment and codification of the power which is currently wielded by the Executive arm of the Government over the judicial appointments process.

Now that the Bill has been passed despite the misgivings and issues highlighted above, the legal fraternity can only hope for the best, and will no doubt follow its implementation closely.

The writer is a member of the Bar Council’s National Young Lawyers Committee (NYLC). Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc

I was fortunate to have been invited by Asia Business Forum to speak at the Legal Technology Conference held on 16 – 17 December 2008. A friend of mine, Eddie Law, was the one who put forward my name to the organisors.It was a great experience overall and this was the first time I had given an external talk outside of the Bar and outside of the office. I had a 45-minute slot and I was worried that I wouldn’t be able to fill up that entire slot.

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My presentation was on Online Marketing for Lawyers: How Lawyers Can Increase Their Online Presence. Having firstly defined what is marketing especially in the context of the provision of legal services, I quickly touched on the more traditional forms of marketing. I was going to touch on three forms of online marketing, being websites, blogs and social networking platforms. However, before I launched into the three areas, I set out the legal framework governing the level of publicity or marketing allowed in the legal profession.

In Malaysia, the ‘code of conduct’ of lawyers is set out under the Legal Profession Act as well as its various rules. Under the publicity rules and certain Bar Council rulings, there are restrictions on the level of publicity that can be made in the electronic media.

Having set out some of these restrictions, I weighed in with my criticism of the heavy restriction of publicity. On the one hand, I recognised to need to protect the dignity of the profession and to prevent soliciting and touting for work, and on the other hand, there is a need for law firms to not only market for clients in a local environment, but to also market themselves globally against other law firms.

I moved on to the first method of online marketing that of websites. I shared some practical tips on ideas for presentation as well as ideas for content. I took screenshots of some law firm websites to give ideas while also highlighting some of the recent trends in content on some of the websites.

In relation to blogs, I used some of the content from an earlier article on bLAWgs and how the growth of law blogs is also seen on the Wall Street Journal’s law page. It features breaking law stories from around the web with the majority of the stories coming from blogs.

The lure of blogs as a marketing tool is simple. If people are reading what you are writing on a daily basis, and you are writing interesting things that are helping them understand how their business works, it is natural that they will want to contact you and harness more of your expertise.

Finally, I then elaborated on the rise of social networking platforms such as Facebook and LinkedIn. The use of LinkedIn especially could be of benefit as a marketing tool. It focuses on professional connections as opposed to Facebook’s focus on personal connections. The appeal of social networking can also be seen in Legal OnRamp. A social networking website, only by invitation only, for in-house counsel along with certain law firms.

Attendance at the conference was low, which was really a shame. There was some very interesting talks, especially on the use of technology as an aid to litigation, or the roll-out of the e-court system here in Malaysia. I met a number of interesting individuals and I look forward to keeping in touch with them.

The good news is that several international firms have clinched the Qualifying Foreign Law Firm (QFLF) licenses to set up their law firms in Singapore. 4 UK firms and 3 US firms, namely Allen & Overy, Clifford Chance, Herbert Smith, Latham & Watkins, Norton Rose and White & Case have won the licences ahead of 14 other firms. The total of 6 licenses given out were an increase from the original 5 licenses that were up for grabs.The scheme gives the foreign firms the right to practise Singapore law in permitted areas through Singapore-qualified lawyers employed by them. Previously, foreign firms could only practise through a joint law venture. As announced a short while back, Clifford Chance had broken off its joint law venture with Wong Partnership, undoubtedly because it had already submitted its proposal to get the QFLF and perhaps there were already indications that it had succeeded.The bad news for the legal market is that the wave of lay-offs in the US and UK legal market will likely hit the Asia-Pacific region. ALB is of the opinion that the question is not if the Asia-Pacific legal services market will be hit by this wave of redundancies but when.ALB reports on the talk that one of Singapore’s most prestigious capital markets and M&A practices had already kicked a number of its lawyers to the kerb in an effort to reduce costs. I have also heard some mention of Singapore law firms thinking about not paying out bonuses for this year. Would have been previously unimaginable hearing talk like that.

An interesting Times online articlefeaturing the lack of commercial knowledge among the trainee lawyers at Freshfields. The lawyers there are of course practicing solely in commercial areas of practice and 15 questions were set out to test their commercial knowledge. The average score came back at 43%.I have taken a look at the questions and they aren’t that easy. No way I would have scored high on that quiz. Here in Malaysia, a lot of people practice in some form of commercial practice, but there may not be enough emphasis in pushing for lawyers to also maintain a broad base of business knowledge and being in tune to current events.

Quoting from the Times article:

An e-mail sent to the trainees later by an unnamed graduate recruitment officer called for an improvement in their general business knowledge and suggested that they would be tested again. “A person who claims to be a commercial lawyer but who doesn’t have much of a handle on what is going on in the commercial world isn’t, in the end, going to be fantastically credible to clients,” it said.

With the credit crunch continuing unabated around the world, the crisis has now left UK and US law firms reeling in its wake. The number of lay-offs keep piling up.Over in the UK, Hammonds has hit 95 and Eversheds clocks in with two redundancy consultations, with the first round having 33 jobs under the chopping block and its second with 45. On the other side of the Pacific, US firm Orrick Herrington & Sutcliffe will be laying off 40 associates and counsel and White & Case has measured in with 70 lawyers.

While areas linked to real estate practice has been pretty badly hit, the lay-offs are also hitting corporate lawyers doing M&A work for instance.

It is interesting to see that the present slowly in the economy has not quite dampened the impending entry of foreign law firms into Singapore. Legal Week reported that at least 6 UK law firms have applied for the 5 Qualifying Foreign Law Firm licences up for grabs, in order to set up shop and practice Singapore law. These firms include Ashurst, DLA Piper, Herbert Smith and Norton Rose. Clifford Chance and Allen & Overy, despite having a JLV presence in Singapore, are believed to have applied as well.The presence of the foreign law firms should continue to boost the legal job market in Singapore.