'Judges must not be afraid to assert their independence'

Judges must not be afraid to assert their independence in order to be respected, even in the face of a "powerful" executive, said retired Court of Appeals judge Mohd Hishamudin Mohd Yunus.

"Judges must be courageous and assert their independence. What do the judges want? Do they want to be respected or do they want to be looked down upon by the citizens?

"It is true that there's a powerful executive to contend with, (which) has the power of appointment, promotion, and even the removal of judges as shown in the cases of Salleh Abbas, Wan Sulaiman Pawanteh, and George Seah," he said in a public forum titled 'Whither the Federal Constitution – Do fundamental and minority rights matter?' organised by the Bar Council in Kuala Lumpur today.

Hishamudin was referring to the 1988 constitutional crisis during Dr Mahathir Mohamad's tenure as prime minister which saw the sacking of then lord president Salleh Abbas, along with then fellow Supreme Court judges Wan Sulaiman and Seah.

However, a powerful executive is not an excuse for judges to not assert their independence, Hishamudin said.

"A person who is meek should not have accepted the appointment of a judge.

"Judgeship is a public trust and on no account must this trust be betrayed," he said.

The risks for a judge will always be there, he added, but he said a "ruthless executive" would never be able to emasculate the judiciary by targeting the judges.

This is if every judge within the judiciary – as opposed to a mere handful – were of high integrity, courageous and fearless in asserting their independence, he said.

Speaking on the issue of judicial appointment, fellow retired Court of Appeals judge Mohamad Ariff Md Yusof said the problem was that recommendations for judicial appointment have to be referred to the prime minister.

"The weak link lies in the need to have the recommendation referred to the prime minister because some people who deserve to be at the apex court were not appointed.

"Thought should be given on how to improve the system," he said.

Bar Council president Steven Thiru gave a suggestion on how to improve the system of judicial appointment, stressing that the final say cannot lie in the hands of the prime minister.

He explained that if the prime minister were to disagree on a recommendation made to him, he must explain his reasons to the Judicial Appointments Commission (JAC).

If the JAC disagrees with his reasons, then the recommendations should go straight to the Conference of Rulers, bypassing the prime minister, he said.

"You cannot have a situation like now, where a recommendation is made to the PM, everything goes silent and all the PM says is 'give me another name and another name, until I get a name that I am happy with'.

"So, what happened with all the names before that? What was wrong with them?" Thiru asked. -Mkini