Is PM Anwar Abusing His Power in Judicial Appointments, Chief Justice?

A Look at the System

It was rather unfortunate that outgoing chief justice, Tengku Maimun Tuan Mat, would choose a law conference in faraway Malta to call for the prime minister to be stripped of his role in the appointment of judges.

The immediate reaction among some was that the chief justice was probably venting her frustration at not having her tenure, which ends in July, extended for another six months. Only she will know whether this is true.

Under Article 122B of the Federal Constitution, the Yang di-Pertuan Agong is obliged to take his advice when appointing the holders of the judiciary’s top four positions — the chief justice, the Court of Appeal president, and the chief judges of the two High Courts — as well as all superior court judges.

The prime minister plays a key role in the Judicial Appointments Commission (JAC), whose primary function, as set out in Section 21(1)(a) of the JAC Act 2009, is to select suitably qualified candidates for the prime minister’s consideration.

The Prime Minister’s Responsibilities

The prime minister has significant influence in the composition of the nine-member JAC. The top four judges, who are by virtue of their positions automatic members of the JAC, are all appointed on his advice. He is also the selector of the fifth judge on the commission.

The prime minister also selects four other eminent persons to the JAC albeit after consultation with the attorneys-general of the federation, Sabah and Sarawak, and the country’s three bar associations.

But the prime minister’s powers come with certain statutory responsibilities.

Section 2 of the JAC Act provides that he must uphold the independence of the judiciary and provide the necessary support for it to function properly. He must also ensure public interest is properly represented in the administration of justice.

An Alternative System?

So, is Tengku Maimun saying that the current system does not work or that the prime minister is abusing it?

What alternative system does she have in mind? Is she advocating a system where all judicial appointments are proposed exclusively by the judiciary itself?

On paper, that may appear to be in accordance with the separation of powers doctrine, but in the real world, it may also be a recipe for disaster.

India’s Experience

One needs look no further than to India, where the outgoing Chief Justice of India (CJI) recommends his successor to the government.

Other supreme court judges are recommended by a collegium comprising the CJI and the four senior-most judges. A largely similar system is used to appoint the chief justice and judges of the country’s high court.

That in-house appointment system has long been criticised for lacking oversight and transparency. Critics also say it has no check-and-balance.

They claim this has allowed for corruption among judges to go unchecked.

Conclusion

In conclusion, while Tengku Maimun’s comments have sparked a debate, it is essential to consider the current system and its limitations. The prime minister’s role in judicial appointments is significant, but it is not without responsibility. The system in place provides a balance between the executive and the judiciary, ensuring that the independence of the judiciary is upheld.

FAQs

Q: What is the current system for appointing judges in Malaysia?
A: The system involves the prime minister advising the Yang di-Pertuan Agong on the appointment of judges, with the JAC playing a crucial role in selecting candidates.

Q: Is the system flawed?
A: While it has its limitations, the system provides a balance between the executive and the judiciary, ensuring the independence of the judiciary is upheld. However, it is essential to consider alternative systems and their potential drawbacks.

Q: Is India’s system of in-house appointments failing?
A: Yes, India’s system has been criticized for lacking oversight and transparency, with no check-and-balance in place. This has led to allegations of corruption among judges going unchecked.

Q: What is the solution?
A: There is no straightforward solution. The ideal system would strike a balance between the executive and the judiciary, ensuring the independence of the judiciary is upheld while also providing transparency and accountability.