Judicial integrity begins with historical honesty

 

From Mahathir Rais

Calls to reform the judicial appointment process have gained momentum in recent weeks in the wake of remarks by outgoing Chief Justice Tengku Maimun Tuan Mat.

Her proposal to remove the prime minister’s role from judicial selections reignited an old debate, one that too often overlooks history and applies outrage selectively, depending on who holds power.

Many have seized on her comments to accuse the current government of resisting reform.

But such criticism rings hollow when we recall how similar bypasses of the Judicial Appointments Commission (JAC) process were once quietly accepted, even celebrated, when undertaken by previous administrations.

In his memoir “My Story: Justice in the Wilderness”, former attorney-general Tommy Thomas admits that in 2018, he and then prime minister Dr Mahathir Mohamad did not follow JAC’s recommendation for chief justice. Instead, they selected a different candidate entirely.

He also recounts his role in influencing other top judicial appointments outside of the JAC process.

These revelations confirm that executive involvement in judicial appointments is not new. What is striking is the lack of public outrage at the time.

There were no accusations of political interference, no demands for legal accountability, and no urgent calls to defend the sanctity of JAC. The same process now labelled as interference was previously framed as pragmatic leadership.

Under Article 122B(1) of the Federal Constitution, the appointment of judges is made by the Yang di-Pertuan Agong, acting on the advice of the prime minister, and in consultation with the Conference of Rulers.

This provision exists for a reason. It reflects a constitutional design that balances executive input with institutional oversight.

Removing the prime minister’s role would not only require an amendment, it would also undermine the very constitutional principles that reformers claim to defend.

Judicial systems across the world include executive participation in appointments.

In the US, justices are nominated by the president and confirmed by the senate. In the UK, judges are appointed by the king on the advice of the prime minister and lord chancellor.

In India, the collegium system has not eliminated the executive’s formal role, and debates over its transparency continue to this day.

There is no democracy in the world that completely removes the executive from the judicial appointment process.

Malaysia should strive for greater transparency and trust in judicial appointments.

But reform cannot be driven by political convenience or selective memory. If bypassing JAC was not seen as abuse when it was done by a previous government, it is disingenuous to claim a constitutional crisis when the same framework is followed today.

Reform begins with consistency. If we are to build a stronger judiciary, we must first be honest about how we have treated the system in the past.

Otherwise, we are not correcting injustice. We are simply reinventing it under a different name. - FMT

Mahathir Rais is the former secretary of Bersatu and Perikatan Nasional’s federal territories chapters.

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