Sultan Azlan Shah's comments warning on the detrimental effect of an erosion in public confidence in the judiciary seems strangely out of time. No doubt what His Highness says is correct; but then this is said as if the judiciary is still at a fork in the road when really, it has been sprinting headlong down the road frequently traveled since 1988.

I also wonder why His Highness, who displayed powerful intellect, innovation, independence and such a direct, eloquent cogency in most of his written judgments feels the need to beat around the bush in criticising the present judiciary.

No doubt the apologists would argue the 'at-least-His-Highness-said-it' argument; if one is content with just that, then that argument will always be irrefutable.

His Royal Highness was spot on when he said that 'the law would not be effective in dispensing justice unless its implementation mechanisms were based on procedures that were fair and transparent and administered by judges who were qualified, independent and of high integrity'.

What this basically means is we need honourable, able, intelligent, honest and fair people to be appointed as judges if you want justice to be regularly served, and served as ubiquitously as nasi lemak .

More importantly, we need a mechanism to ensure that only such people are appointed. This was made abundantly clear in a recent talk organised by the Bar Council and the Konrad Adenauer Foundation recently.

They invited Professor Dr Dieter C Umbach, a professor of law and former presiding judge at the Appellate Court for Social Matters, to give a talk on 'The System of Judicial Appointments in Germany'.

It was refreshing to hear him speak about just how open, transparent and rigorous the selection process of judges is in Germany right from the County Court judge right up to the Federal Constitutional Court judge; about how even the mere hint of a taint of a judicial candidate would practically result in ineligibility; about how much more dangerous and tempting it is for judges in higher positions to use their office for their own selfish purposes

The professor mentioned rather amusingly about how the most honest judge would be the County Court judge that is posted in the boondocks; about how the courts decide on the issues and arguments, and are unafraid of making a decision against the government.

In short, it was a superb talk that should have been attended by members of the judiciary instead of a room of mostly lawyers. It was heartening however to see the rumoured newly-appointed Court of Appeal president as well as another Court of Appeal judge take the time and trouble to attend.

In Malaysia, a lower court judge (magistrates and sessions court) is appointed and managed theoretically by a Judicial and Legal Service Commission, not the chief justice.

However, from my understanding (of which I readily admit is not perfect), even though the attorney-general is merely a member of this commission, in truth, he is very influential, if not the most, regarding the issue of appointments.

More horrifying, there is no transparency or benchmark or qualifications as to whom may be appointed. So if the attorney-general wanted to appoint a monkey to the position, there really is nothing to stop him doing so (provided that monkey is a member of the judicial and legal service).

And who appoints the attorney-general? Article 145(1) of the Federal Constitution says it is the Yang di Pertuan Agong, on advice of the prime minister. This basically means 'the prime minister decides'.

According to Article 122B(1) of the Federal Constitution, appointment of judges in the High Court and above are appointed by 'the Yang di Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers'.

This was explicitly decided in the Court of Appeal decision of Anwar Ibrahim v PP [2000] 2 CLJ 570. The Conference of Rulers and the Yang di Pertuan Agong are not safeguards to whom may be appointed.

Don't believe me? This is what the Court of Appeal said: 'So in the context of article 122B(1) of the Constitution, where the prime minister has advised that a person be appointed a judge and if the Conference of Rulers does not agree or withholds its views or delays the giving of its advice with or without reasons, legally the prime minister can insist that the appointment be proceeded with'.

What does this leave us with? Say it altogether now: 'The prime minister decides'.

It's been said that the prime minister is the number one civil servant. How very ironic then that a mere civil servant is able to disregard the views of all the sultans and the Yang Di-Pertuan Agong's on this matter no matter what their reasons.

The sheer irony is only matched by the deafening silence of the Conference of Rulers on this blatant invasion of their constitutional right.

So are there any guidelines or criteria set by which the prime minister must base his decision on his candidates? The amusing answer would be: 'As many as you can fit on into a Brazilian bikini thong!'

The short depressing answer would be a resounding 'no'. The prime minister has an unfettered right to appoint whomever he likes, provided they fulfill the legal (not moral, intellectual or political) - and I suppose his own - requirements.

There is also no need to justify to anybody why he wants this or that person appointed to judgeship or attorney-generalship. With the amount of head scratching going on over many of the appointment of judges since 1988, it is a wonder that many lawyers and good judges still have a full head of hair!

Is there any attempt on the books to make the judicial selection process more transparent, more meritorious, more honorable, more accountable and fairer? Not that I have heard of. The newly minted prime minister, for all his platitudes about transparency and efficiency, has perhaps been too busy to even spare a word about this rather glaring deficiency despite the brouhaha raised by the Bar Council about this issue several months ago.

His department has, however, been making some noise but it seems to be completely out of tune. Minister in the Prime Minister's Department Nazri Abdul Aziz was reported to have said that the concept of separation of powers between the legislative, judiciary and executive is 'too idealistic' to be implemented in the country.

He is reputed to have been a practicing lawyer before. If he did, then he must have found it not at all worth his while to learn a little about the constitutional law in our country.

But then think about it why would the prime minister want to make himself accountable and limit the extent of his discretion, and by implication, his already awesome powers by doing this? The raison d'etre of all politicians is to gather more and more power and influence for their own survival, security, success and to perpetuate their own brand of hegemony. Ever hear of a politician say, 'Give me less power and influence, please?'

I would therefore, with the greatest humility and utmost respect, urge Sultan Azlan Shah to make his speech the first step in a journey to lead a more sustained, sincere and substantive effort to bring about a return of a judiciary that His Highness's had the privilege of leading during its halcyon days.

A good start to this effort is - as His Highness has pointed out himself - to reform the manner in which the attorney-general and judges (at all levels) are appointed.

A rare few possess His Highness's integrity, experience, intellect and political clout to initiate and lead such an effort. Until this is done, appointment of these positions will in good time inevitably turn into merely a tool of patronage by the prime minister.

Until this is done, a prospective candidate would have better chances of appointment by practicing the dark arts of sycophancy rather than working diligently to acquire and maintain all the essential qualities of a judge.