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Remove PM's role in appointment and elevation of judges

The constitution and the Judicial Appointments Commission Act 2009 must be amended to remove the prime minister's role in this regard.

Charles Hector
5 minute read

Madpet (Malaysians Against Death Penalty and Torture) demands confirmation that the recent appointment of High Court judges, Court of Appeal judges, Federal Court judges, the new president of the Court of Appeal Abang Iskandar Abang Hashim, the new Chief Judge of Malaya Mohamad Zabidin Mohd Diah, and the new Chief Judge of Sabah and Sarawak Abdul Rahman Sebli was as recommended by the Judicial Appointments Commission (JAC), and not the decision of Prime Minister Anwar Ibrahim who ignored all or some of the recommendation of the JAC.

As it is now, the Federal Constitution in Article 122B(1) still states that "the chief justice of the Federal Court, the president of the Court of Appeal and the chief judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts, shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers." There is a need for a speedy amendment of the constitution to remove the prime minister, to be replaced by an independent JAC.

On Sept 26, 2007, about 2,000 lawyers of the Malaysian Bar gathered at the entrance of the Palace of Justice in Putrajaya before marching to the Prime Minister’s Office to deliver the Bar Council’s memorandum, which among others called for an independent JAC to select appoint judges. Concern about the independence in the selection of judges arose when a video emerged showing a lawyer discussing with a senior judge about appointments of judges.

The government responded positively in the enactment of Judicial Appointments Commission Act 2009 (Act 695), whereby the commission was to submit recommendations to the prime minister. It was expected that the prime minister would follow the recommendation of the JAC and advise the king as such.

However, a task force in October 2022 alleged that four individuals appointed to the top judicial posts in July 2018 differed from those selected by the JAC and conveyed to then prime minister Tun Dr Mahathir Mohamad in June 2018.

Given this, and the possible disregard of the prime minister to the recommendation of the JAC, there is a need to amend the Federal Constitution, to remove the role played by the prime minister in the selection and appointment of judges. It should be replaced with the JAC directly advising the king.

When it comes to the JAC, at present the prime minister plays a role in the appointment, and this needs to be removed. Section 5(1) of the Judicial Appointments Commission Act 2009 now states that "the commission shall consist of the following members: (a) the chief justice of the Federal Court who shall be the chairman; (b) the president of the Court of Appeal; (c) the chief judge of the High Court in Malaya; (d) the chief judge of the High Court in Sabah and Sarawak; (e) a Federal Court judge to be appointed by the prime minister; and (f) four eminent persons, who are not members of the executive or other public service, appointed by the prime minister after consulting the Bar Council of Malaysia, the Sabah Law Association, the Advocates Association of Sarawak, the attorney-general of the federation, the attorney-general of a state legal service or any other relevant bodies."

Thus, there is a need to amend the Judicial Appointments Commission Act 2009, to ensure that the four eminent persons are selected and appointed not by the prime minister.

The Conference of Rulers on Nov 30, 2022 also proposed the removal of the prime minister's power to appoint four representatives to the nine-member JAC, the body which proposes candidates to be made judges in the superior courts.

Negeri Sembilan's Tuanku Muhriz Tuanku Munawir, on behalf of the Conference of Rulers, also was reported saying that "to ensure the independence of JAC in carrying out its responsibilities, I propose that the appointment of its five members should not be made by the prime minister. Instead it should be given to other institutions such as the Malaysian Bar Council, the Sabah Law Society, the Sarawak Bar Association and the parliamentary select committee."

Chief Justice Tengku Maimun Tuan Mat, on Jan 9, 2023, called for the amendment of the Federal Constitution, and the Judicial Appointments Commission Act 2009. She said: "We will not reach the objective of appointing judges without executive involvement, if the current provision (which requires executive consultation) remains." She said the prevailing public perception of executive involvement in the appointment of judges must also be removed.

The conviction of the previous prime minister Najib Razak, and the fact that many members or former members of the Cabinet have pending cases in court, make it all the more urgent to remove the prevailing public perception of executive involvement in the appointment of judges. Will judges chosen or elevated by the prime minister be seen to be independent in cases involving the prime minister, his Cabinet members or even the government?

In court today, Prime Minister Anwar Ibrahim himself too has commenced several defamation suits in court, among others against  Muhyiddin Yassin, Kuala Terengganu MP Ahmad Amzad Hashim, Kedah Menteri Besar Muhammad Sanusi Md Nor and Perak PAS chief Razman Zakaria. There is also the case of Yusoff Rawther, a former research assistant to Anwar, claiming sexual assault against Anwar that is still pending in court.

Noting the urgency and the current state of affairs, the Federal Constitution and the Judicial Appointments Commission Act 2009 must be speedily amended to remove the perception of executive involvement in the appointment and elevation of judges.

The required bills should be tabled at the upcoming Parliamentary session, and they should be passed easily considering that Anwar has the support of more than two-thirds of the MPs, which is required for amendments to the Federal Constitution.

Madpet also calls for immediate disclosure as to whether Anwar appointed and elevated judges as per the recommendation of the JAC, or if he opted to ignore the JAC recommendations and appointed or elevated judges on his own. The names of judges appointed or elevated, different from those recommended by the JAC must be made known, and it would be best that these judges consider recusing themselves from cases involving the government or the prime minister, Cabinet members or politicians.

The perception that Malaysia has an independent judiciary is a matter of great urgency, and the needed amendments to the constitution must not be delayed.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.