Abolish law on judicial appointment, says ex-judge

 

Former Appeals Court judge Mohd Hishamudin Yunus pointed out that the JAC could only propose names but the prime minister could shoot down the proposals without a reason.

PETALING JAYA: Former Court of Appeal judge Mohd Hishamudin Yunus has suggested that the law on judicial appointments be abolished, to remove any influence from the executive branch in appointing judges.

In a G25 online forum entitled “Post Covid-19: The Importance of Institutional Reforms” today, he said the prime minister now appoints five of the nine Judicial Appointments Commission (JAC) members.

“This is unhealthy because the prime minister is a politician himself. There is a risk that he will not appoint an independent-minded person to sit in the committee and may appoint someone sympathetic to his political affiliation,” Hishamudin said.

Currently, Chief Justice Tengku Maimun Tuan Mat heads the JAC, along with Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, and Chief Judge of Sabah and Sarawak, Abang Iskandar Abang Hashim.

Other JAC members include Federal Court judge Mohd Zawawi Salleh, former judges Suriyadi Halim Omar, Prasad Sandosham Abraham, Stephen Chung and Universiti Malaya (UM) law lecturer Johan Shamsuddin Sabaruddin.

Hishamudin, who is now a consultant in a law firm, pointed out that the JAC’s role was to only propose names to be elevated and that “the prime minister is not obliged to accept the recommended candidates”.

“He does not need to give a reason why he rejects a name. This current system is not conducive for the purpose of ensuring independence in the judiciary. There are times when judges need to decide on cases against the government.

“This gives rise to the belief that the judiciary is beholden to the executive,” he said.

Hishamudin suggested that provisions on the appointment of judges be included under the Federal Constitution.

“I would also propose that the JAC directs its recommendations of candidates to His Majesty, the Yang di-Pertuan Agong directly. The Prime Minister should not play any role,” he added.

Meanwhile, law expert Shaq Saleem Faruqi, who also attended the forum, said there was a need to give priority for private members’ bills to be tabled and debated in both the lower and upper houses.

Shaq said no private members bill has ever been passed in either house for the last 64 years since Malaysia gained its independence.

He said these bills were allowed by Standing Orders and should be encouraged, adding that it would enhance the role of backbenchers, involve participation by non-governmental organisations (NGOs) and reflect the democratic impulses of society.

“Furthermore, such a bill may enable the government to avoid paying a political price if the bill, though badly needed, is opposed to public opinion.

“The Speaker’s Office should draw lots and those whose names appear in the top four slots should be given time and financial aid to submit their proposals,” he said.

Shaq added that there was a need to increase the number of parliamentary sittings in order to assist Parliament to perform its role better.

He said the Dewan Rakyat now only meets 70-80 days a year while in the United Kingdom, it meets about 170 to 180 days a year.

Shaq said that part of the problem might lie in Article 55(1) of the Federal Constitution which states that Parliament shall allow six months to lapse between the last sitting in one session and the date appointed for its first meeting in the next session.

“In 2020, the Dewan Rakyat met for only 55 days. Due to the state of emergency in 2021, it met for the first time this year on July 26. The Dewan Negara’s record of meetings is even more embarrassing,” he said. - FMT