When Chief Justice Tengku Maimun Tuan Mat retires later this year after six years at the helm and doing much to restore the judiciary’s independence and credibility, it is up to Prime Minister Anwar Ibrahim to ensure that continues by appointing a person of unimpeached credibility, ability and integrity.
Tengku Maimun herself emphasised this in an outstanding address at the opening of the legal year on Wednesday.
It was an education on some key constitutional issues and would be required reading for anyone who wants to be well-informed before having an opinion on many current legal issues.
Not only that, on the formation of the Judicial Appointments Commission (Jaca) in 2009 to appoint judges, she reminded that Anwar, in opposition at the time, said it did not go far enough to ensure judicial independence.
She opened with a reminder to judges of their responsibility: “You have agreed to live a life of solitude and you have relinquished loyalty to any institution apart from the judiciary and the Federal Constitution.
“You have agreed to become the perfect citizen who accommodates no advice and adheres to no one’s instruction apart from the dictates and mandates of the Constitution and the law.
“You know politics, carry out your duty as a voter, but take no part in it, in any way, shape or form. You are tasked to do justice by the law but at the same time, you have become dispassionate to all manner of sufferings, plights and pain as these are only secondary to the law.”
It goes on. Her opinion and justification for some key issues, including the rejection of syariah laws in some areas, have been widely reported.
However, what I would like to emphasise is some of the comments she made on judicial independence which should be taken into account by those responsible for appointing judges, including the prime minister.
Constitution is supreme
Tengku Maimun argued that the Federal Constitution is supreme and that any laws made contrary to it are illegal.
Some extracts: “The Constitution is not just a mere collection of words. It is a blueprint as much as it is a living reminder of our history.
“Due to the nature of its founding, including the fact that the Constitution renders Parliament subordinate to it, the Constitution is greater than the sum of its words.
“What it does mean is that Parliament, being subordinate to the Constitution, cannot (even with the requisite majorities and consents) directly or indirectly eradicate these features at the risk of destroying the Constitution and Malaysia itself.
“The existence of this doctrine of constitutional supremacy that upholds not just the words and explicit provisions of the Constitution but protects its spirit, implied principles and design, is an indelible principle of our rule of law.
“Who is to ensure that the Constitution is preserved and its supremacy upheld? It must be the superior courts.”
The infamous VK Lingam tapes
Then, the point she makes about judicial independence being vital for the protection of constitutional rights becomes crystal clear.
“Firstly, the very building blocks of the judicial institution are its judges. A judge must not only be qualified on paper but must carry with him or her the right temperament, physical stamina and mental courage to deal with the high demands of the duties of their office.
“If the wrong persons are appointed, the very course of justice stands to be averted. It is almost impossible to build a resolute and entirely independent institution if its lead actors are not poised to play the part required of them.
“Secondly, we cannot deny the blemish in our history – that was the 1988 Judicial Crisis. This one crisis itself tarnished the independence of the judiciary and paved the way for further incursions into the institution.
“In its aftermath, we also witnessed completely unsettling events that are known as the infamous VK Lingam Tapes.
“Most heinously, revelations were made that certain persons were literally deciding on who should become judges specifically as a means of reward, as though appointments of judges can be used as bargaining chips.
“This event called for an independent judicial appointments process to ensure that tarnished candidates do not stand a chance of appointment.”
Before 2009, when the Judicial Appointments Committee Act was passed to form a committee for the appointment of judges, the prime minister had more or less sole authority to decide on judicial appointments after taking into account the opinions of rulers and the chief justice.
Tengku Maimun then issued the reminder to Anwar: “Most of all, I find relevant the views of the then recently appointed leader of the opposition and current prime minister, who expressed strong views on the VK Lingam incident.
“He concluded then that the Jaca 2009 (in his view) was not enough to restore the independence of the judiciary. He went on to observe that there is a perception that persons who had decided in favour of the government were promoted.”
Tengku Maimun said that Anwar’s observation then stemmed from the fundamental aspect that perception plays a huge part in the process.
“The public cannot be expected to have confidence in the judicial institution no matter how hard its judges work if the pervading public perception is that judges are appointed or elevated upon the favour of making decisions that by default support the government or certain business interests.
“From 1988, it is only now that we are on the road to recovery in terms of our perception of independence.
“Incidentally, 15 years ago, before the Jaca 2009 was enforced, the then leader of the Opposition made the comments that he did, as reflected in the Hansard, on the appointment of judges and judicial independence.
“I am certain that now, as prime minister, Anwar and his government will remain true to those comments by continuing to unreservedly remain committed to upholding the cause of judicial independence.”
A reminder to Anwar
Tengku Maimun points out that even with the Jaca, the prime minister still may have too much power in the appointment of judges.
““The mechanism of the Jaca 2009 is far from perfect. As we can see from the parliamentary debates, there are many issues raised against it.
“Even after its passing, many quarters, including the Bar Council have recommended changes to strengthen the Act. Foremost, concerns the fact that the prime minister still has too much power in the appointment of judges.”
It is in Anwar’s power to uphold judicial independence through the appointments. He owes it to the king, the country and the people to ensure judicial independence by helping to appoint judges and a chief justice who continue the excellent work that Tengku Maimun and her team did.
Anwar himself was a victim of previous judicial misconduct in his own cases where he was denied a fair trial by a judiciary compliant with the government at that time.
Many of us will recall the repeated ruling of “irrelevant” of one judge who was hearing his case to pertinent questions by the defence.
His aim of curbing corruption is very dependent on an independent judiciary. And the judiciary should and must remain the last bulwark of defence of anyone seeking justice.
Destroy it and the very foundation of a civilised nation crumbles along with it.
Enforcement agencies must be independent
There need to be other changes. The Attorney General’s Chambers (AGC) and investigative authorities such as the MACC and the police need to be truly independent, scrupulously clean, and extremely efficient if he is to realise his goal of eradicating corruption.
It is a matter of putting the right people in place, at the courts and the enforcement and prosecuting agencies. That has been disappointing so far - the AGC has come under fire for its poor handling of some key corruption cases including those involving former prime minister Najib Abdul Razak and Deputy Prime Minister Ahmad Zahid Hamidi.
As for the MACC and police, there have been repeated allegations that they have prosecuted selectively, targeting mainly those who are not friendly to the current administration.
Will Anwar lead by ensuring judicial independence and professionalism and follow it up with action at the prosecuting and enforcement agencies? Let’s see. - Mkini
P GUNASEGARAM says people of integrity and ability are needed for effective change throughout government and the services. The challenge is to get the right politician at the top to make the appointments.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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