Is Pm Anwar Abusing His Power In Judicial Appointments Chief Justice

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Ibrahim M Ahmad
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.
But Tengku Maimun has a point. In Malaysia, the prime minister plays a very significant role in the appointment of judges.
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.
He also 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 statute sets out in some detail the criteria and selection process involved in nominations to the four top posts.
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.
No doubt, much responsibility is vested in the prime minister, but that is given by law, and not without reason.
After all, the prime minister has the confidence of the majority of MPs in the Dewan Rakyat, and by that token has the people’s mandate to administer the country.
Yes, the prime minister has a significant role in the appointment of judges, but, for the most part, he does not act alone.
The four top judges are appointed by the king, who, apart from taking the advice of the prime minister, must also consult the Conference of Rulers when exercising his constitutional discretion.
Likewise, the appointment of the four eminent persons to the JAC is also only after consultation with stakeholders in the legal industry.
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.
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.
Just last month, a fire at the home of Delhi High Court judge Yashwant Varma saw a large stash of cash burnt, giving rise to accusations that he was corrupt.
Rather than hand the case over to the country’s investigative bodies, India’s Supreme Court, refusing to subject itself to external scrutiny, proceeded to launch its own in-house inquiry.  That decision has been heavily criticised.
Meanwhile, efforts to introduce a more transparent appointment system have been rendered futile.
In 2015, India’s parliament and a host of state legislatures passed laws seeking to introduce a national judicial appointments commission with the goal of bringing transparency to the appointment of judges.
The effort was struck down by five judges in the Supreme Court as being unconstitutional for violating the collegium system.
Given that she is soon to retire, the timing of Tengku Maimun’s broadside on the judicial appointments system in Malaysia is unfortunate. Her motivation is also unknown.
Does she have a better solution to share with the nation?
Her reliance on the Salleh Abas controversy in 1988 as the basis for her comments also appears misplaced.
Yes, the judiciary was independent then, and, yes, the unfortunate events that unfolded have been a stain on this country’s judges for a long, long time. But it is important to note that the JAC was not in existence at the time. The prime minister wielded much more power then.
The irony is that, if comments made by former attorney-general Tommy Thomas in his autobiography are true, Tengku Maimun’s own appointment as the top judge also appears questionable.
Despite this, she remains, but for the odd hiccup, highly regarded.
So why choose to go out this way? Again, only she can answer.
To his credit, Prime Minister Anwar Ibrahim was quoted on Wednesday as saying he was open to reforming the judicial appointments process.
Perhaps he will. - FMT
Ibrahim M Ahmad is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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