Appoint chief judge of Malaya from within the judiciary

 

From Zainur Zakaria, Mah Weng Kwai, Kuthubul Zaman Bukhari, Yeo Yang Poh, Ambiga Sreenevasan, K Ragunath, Lim Chee Wee, Christopher Leong and Steven Thiru

A highly competent, robust and independent judiciary is an indicator of whether a nation is truly built on democracy and the rule of law. An independent judiciary is essential for the good of the country, its people, investment, and global standing.

Malaysia is indeed fortunate that it has recovered from the 1988 judicial crisis and currently enjoys the distinction of having a courageous and independent judiciary. It has taken the country more than 30 years to arrive at this position. It was also not too long ago that we had a royal commission of inquiry into the controversy concerning appointments of and interference with judges. This resulted in the enactment of the Judicial Appointments Commission Act 2009.

We had to learn the bitter lesson that while the independence of the judiciary can be destroyed in an instant, rebuilding and reestablishing its independence can take decades.

It is with these experiences in mind that we express our concern at the reports that an 

outsider

 may be appointed as the next chief judge of Malaya (CJM). The attorney-general – who was appointed to that post barely a year ago in September 2023 and is said to be 56 years old – is apparently slated to be made a Federal Court judge and then appointed as CJM, which is the third-highest judicial post in the land.

There is no objectively cogent or compelling rationale for this unusual step when there are in fact several eminently qualified judges of the Federal Court who are more senior and experienced, any one of whom could have been immediately appointed to the position of CJM in February, when it became vacant. The adverse effect on their morale and the institution of the judiciary as a whole, by virtue of this continuing delay to appoint from within, cannot be overstated.

Further, the inordinate and unaccountable delay in the appointment of the CJM – a key post that has been vacant for four-and-a-half months – is perceived as having been precipitated by undue or improper executive interference in the judicial appointment process. This perception gravely compromises public confidence in the independence of the judiciary and the administration of justice.

Notwithstanding that any appointment of the attorney-general as a Federal Court judge appears premature – given the fact that he has served in that capacity for a mere 10 months – the position of CJM requires more credentials. Although the attorney-general has been involved in the administration of justice for many years, he does not have any experience sitting as a judge of the High Court or the appellate courts.

What then is the thinking behind this reported move, if indeed the intention is as stated in the two reports? The powers that be have remained absolutely silent in the five weeks since the first report.

It would be a clear display of recklessness and hypocrisy by this government – comprising, among others, Pakatan Harapan, which for decades has pressed for transparency, accountability, non-interference in the appointment of judges, and an independent judiciary – if it is indeed taking steps that may well undermine such principles.

We trust this issue that is plaguing the administration of justice will be put to rest with an affirmative stand by the prime minister that there is no such plan on the cards, that it is recognised that there are presently serving judges who are eligible and eminently qualified to be appointed as the next CJM, and that there is no need to appoint from outside the judiciary. It does not augur well for the nation to leave the future of the judiciary and the administration of justice in such a state of uncertainty.

The sacrosanct position of the judiciary in our constitutional scheme must never again be diminished by the overweening exercise of executive influence or power. - FMT

Zainur Zakaria, Mah Weng Kwai, Kuthubul Zaman Bukhari, Yeo Yang Poh, Ambiga Sreenevasan, K Ragunath, Lim Chee Wee, Christopher Leong and Steven Thiru are past presidents of the Malaysian Bar.

The views expressed are those of the writers and do not necessarily reflect those of MMKtT.