Judges cannot have final say in judicial appointments

 The judiciary should not be allowed the power to control nominations through their majority vote within the commission.

Our Federal Constitution was carefully crafted by the nation’s founding fathers to grant the prime minister the authority to recommend to the Malay rulers the most suitable candidates for judicial appointments.

This power reflected a deep trust in the prime minister, elected through a democratic process, which, at the time, was free from money politics. The assumption was that the prime minister would always nominate the best individuals for the judiciary.

In today’s compromised ethical and political climate, no rational prime minister would willingly relinquish this constitutional power. However, the late prime minister Abdullah Ahmad Badawi, a statesman for all Malaysians, took a significant step towards reform.

He introduced the Judicial Appointments Commission (JAC) through an Act of Parliament, creating a shared process in the appointment of judges. Despite this change, the PM retained absolute power in making final recommendations, subject only to the rulers’ approval.

Thus, no past sitting chief justice from the time of Merdeka had criticised this constitutional procedure as it would have been unconstitutional to do so and would also impinge on the separation of powers doctrine. In my view, such criticism would also violate the judges’ oath of office.

That said, there is nothing to stop retired judges and members of the public from questioning the process if it conflicts with the separation of powers doctrine.

In my view, a critical flaw in the JAC framework lies in how it is constituted. The nine-member JAC is made up of the top four judges in the hierarchy and a fifth senior judge appointed by the prime minister.

This gives the judiciary the power to control candidate nominations through their majority vote within the commission.

This dynamic tends to give the judiciary and the legal industry the impression that JAC-nominated candidates must be accepted by the prime minister and the rulers. Constitutionally, this assumption does not hold true.

During my tenure, I observed that the JAC’s power to nominate often resulted in meritorious candidates with enhanced qualifications being blocked from holding high judicial office.

As a result, the judiciary missed out on highly skilled individuals from academia, the Attorney-General’s Chambers and the legal industry, including many capable Malays.

Moreover, the absence of Chinese members and non-Muslim representatives from Sabah and Sarawak on the JAC, as well as a lack of Chinese judges on the Federal Court bench, is troubling and arguably unconstitutional.

The process of judicial appointments shifted significantly when the old Umno was declared illegal—a decision unprecedented in other democracies.

This was the party which secured the country’s independence with a Federal Constitution that granted legitimate rights to non-Muslims with a constitutional agreement embodied in Article 153 that the country will be governed by those of Malay origin with reasonable numbers of non-Malay/Muslims participating in its administration.

Post-1988, politicians in power recognised the value of a compliant judiciary for political gain and personal enrichment, which in turn led to the erosion of social justice.

I had hoped that the 2018 Pakatan Harapan victory would usher in transparency, but the expected reforms did not materialise. The then-prime minister even appointed top judges of his choice without any objection from the judiciary or legal industry.

The current prime minister does not appear to have tried, but would he be allowed to do the same without an outcry?

Even the Malay rulers have acknowledged flaws in the appointment process.

In 2022, they called for the three bars and a parliamentary select committee to recommend five names for appointment to the JAC. Unfortunately, the legal industry has yet to rally behind this recommendation.

To improve the system, the JAC Act must be amended to remove judicial dominance in appointments.

The commission should also be made to function as an oversight body. It should report regularly to the rulers on case backlogs, trial delays and judgments to enhance accountability and transparency.

Pak Lah deserves recognition not only for introducing the JAC but also for appointing Zaki Azmi as chief justice. Zaki’s tireless efforts resolved backlogs and expedited judgments. He also put in place systems designed to prevent judicial misconduct.

The Malaysian judiciary needs a leader capable of restoring it to its former glories.

Perhaps that leader will also give due consideration to my proposal for clearing case backlogs through a partnership with the academia and the legal industry. - FMT

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