Calls For Reforms Must Be Sincere And Not For Political Mileage Hafiz Hassan

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Three months ago I wrote that the first reformative step towards strengthening the independence of the judiciary is to amend Article 122B(1) of the Federal Constitution.
Article 122B(1) reads as follows:
“The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.” (Emphasis added)
Lest we forget, Article 122B(1) has been as it is since Malaysia Day on September 16, 1963. Over more than 60 years, the provision has seen two major judicial crises — the first in 1988, the second in 2007.
In 2007, in a secretly recorded video, lawyer V.K. Lingam was heard telling the then chief justice on the phone that he could influence judicial appointments as he had the backing of former prime minister Dr Mahathir Mohamad. This resulted in a royal inquiry.
That episode followed the 1988 judicial crisis, when Mahathir sacked Chief Justice Salleh Abbas and several other top judges, effectively curbing the courts’ power as an equal branch of government.
In the 2007 episode, a number of persons were identified by the Royal Commission on the Lingam video clip as seriously undermining the independence and the integrity of the judiciary by their actions of fixing the appointment and promotion of judges.
Below was what commission members concluded about Dr Mahathir Mohamad:
“The commission noted that Dr Mahathir did not follow the constitutional process of consulting the then Chief Justice Dzaiddin Abdullah in the appointment and promotion of judges. For example, when the then PM rejected Dzaiddin’s choice of Malek Ahmad to fill in the vacancy as the Chief Judge of Malaya (CJM), he did not give any reasons.
“Instead, he directed Dzaiddin to choose between Ahmad Fairuz and Mohtar Abdullah as the next CJM. The commission noted that there was evidence that Lingam and his collaborators sabotaged Malek’s candidacy by influencing Mahathir. In the video clip, Lingam told Fairuz that Malek was considered anti–Mahathir.
“[Tan Sri] Malek Ahmad was a victim of character assassination by third parties who had their own axe to grind… this would not have happened if the PM had consulted [Tun] Dzaiddin as to why [Tan Sri] Malek Ahmad was considered to be unsuitable for appointment to the post of CJM. Nor were there reasons given why the PM considered [Tun] Ahmad Fairuz or [Tan Sri] Mohtar Abdullah better candidates. PM’s letter was nothing short of a ‘Hobson’s choice’ that one of the two should be chosen because they were PM’s favoured candidates.”
The commission ruled that an exclusive right in the executive to appoint judges without consultation is inimical to the doctrine of separation of powers and destructive of judicial independence.

Lawyers gather for the Lawyer's Walk for Judicial Independence at the Palace of Justice, Putrajaya. — Picture by Sayuti Zainudin
Worse was to follow when Dzaiddin proposed five individuals as High Court judges in a letter to the PM in October 2001. This time the Chief Secretary to the Government picked five names of serving judicial commissioners for [Tun] Dzaiddin to choose two out of the five.
No reasons were given to Dzaiddin why his choices were rejected.
“The PM cannot remember the reasons. His KSN (chief secretary) does not know the reasons. But there was somebody else who claimed to know the reasons. That somebody else is [Datuk] V.K. Lingam and he said that he achieved this with the participation of [Tan Sri] Vincent Tan and Tengku Adnan Tengku Mansor when all three of them went to see the PM with this objective in mind,” noted the commission.
In the video clip, Lingam discussed Dzaiddin’s letter to the PM in October 2001 and told Fairuz that moves were underway to block the appointment of some of the names nominated by the then CJ.
The commission noted that the Federal Constitution makes clear that the PM has to consult the CJ on appointments to the Bench. “These were serious defaults in the constitutional process, because the mandatory requirement of consultation had not been complied with by persons who had taken an oath to uphold the Constitution. This kind of misbehaviour is so unprecedented that were it not for the release of the video clip it may never have come to light,” it added.
Despite the commission’s damning notes, Article 122B remains unamended — not even during Dr Mahathir’s second term as PM when the elder statesman led a Cabinet of so-called reformist ministers and deputy ministers from PKR, DAP and Amanah.
The calls for judicial reforms are most welcome and never too late but where were such calls when the reformists were in government in 2018?
Let it be known that calls for judicial reforms had been made by no other than the late Sultan of Perak — a former top judge and head of the judiciary — in 2007 itself.
According to His Royal Highness then, it was time the judiciary regain the public’s confidence and bring back the glory years.
“I am driven nostalgically to look back to a time when our judiciary was the pride of the region and our neighbours spoke admiringly of our legal system.
“We were then second to none and the judgments of our courts were quoted confidently in other common law jurisdictions,” said His Royal Highness in his opening address at the 14th Malaysian Law Conference.
The calls for reforms must be sincere and not for political mileage. - malaymail
* This is the personal opinion of the writer or publication and does not necessarily represent the views of MMKtT.

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