Six Key Questions For Anwar Over Judicial Appointments

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At the time of writing, the king has not made any announcement on top judicial appointments, but whatever they are, Prime Minister Anwar Ibrahim needs to answer six key questions over his lapses.
The first thing to establish before asking the questions is who appoints the judges.
The Federal Constitution is clear. The relevant Article 122B (1) is reproduced verbatim below:
“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.”
ADSPM decides, king appoints
It is the PM who decides, and the king who appoints after consulting the rulers.
Anwar’s assertion that it is the king and the rulers who decide is wrong. They only have a consultative role in a constitutional monarchy as far as this is concerned.
Next, is Anwar obligated to take the recommendations of the Judicial Appointments Commission (JAC) set up under the JAC Act 2009? No.
The relevant Section 21 (1) reads: The functions of the commission are -
(a) to select suitably qualified persons who merit appointment as judges of the superior court for the prime minister’s consideration.
The keyword is for the prime minister’s “consideration”, which means he is not obliged to stick to the JAC’s choice.
But under Section 2, the prime minister must uphold the continued independence of the judiciary and must have regard to -
(a) The need to defend that independence;
(b) The need for the judiciary to have the support necessary to enable them to exercise their functions;
(c) The need for public interest to be properly represented regarding matters relating to the judiciary, the administration of justice and related matters.
Now we are ready to ask the questions.
ADS1. Why the delay in announcing the senior appointments?
It was known months, no, years in advance that senior judges were retiring, including the chief justice. Reports said nine senior judges were retiring within two years, but Anwar could not take the time to fill the gaps.
Yet he found time to make 46 international trips to 34 nations during his premiership, which began on Nov 24, 2022, according to reports.
If each trip took just three days off his other duties, that’s 140 days gone. Surely, he could have had time to deal with an impending judicial crisis by working with the JAC proactively.
2. Why did he not extend the tenure of the two top judges by six months?
The two top judges, the chief justice and the president of the Court of Appeal, retired within a day of each other. Anwar could have bought valuable time by simply following the usual procedure and extending their terms by six months - he had the power to do so.
Why did he not do this when he could have bought valuable time to make a considered selection of good candidates with the help of the JAC?
Instead, he has allowed a situation which horribly hinders a judiciary already hobbled by overwork and rapid loss of senior judges.
3. Do all these help judicial independence and efficiency?
We can answer this one, despite anything that Anwar says. It does not.
Anwar has a sworn duty under Section 2 of the JAC Act, as enumerated above, to uphold judicial independence, give the judiciary support and resources, and take care that the public interest is adequately represented.
Anwar was seriously deficient in every single count here, and he owes an explanation to the public, to Parliament, his party, his coalition partners, and the opposition.
4. Was there an attempt by a Federal Court judge to influence the appointments?
We know what Anwar will say regarding this - let the authorities investigate. But so far, they have been investigating the leak of the alleged minutes of a JAC meeting under the draconian Official Secrets Act, which seeks to protect the government from legitimate concerns over important issues.
Malaysiakini has been questioned following a police report made about the leaks by an aide of the Federal Court judge in question, but there appears to be no investigation on the alleged attempt to influence judicial appointments, potentially a far more serious and wide-reaching crime.
5. In the interest of transparency, why did Anwar not disclose the JAC list and the final list?
For Anwar to have submitted his list to the king, the JAC must have made its recommendations.
It is important to disclose this list and the final list that Anwar submitted, including an explanation to the public (remember the sworn duty to public interest) why there were changes, if any.
6. Were these lapses because Anwar wanted to control the judiciary?
This is the natural question to ask given the sequence of events that has taken place.
By not extending the chief justice’s and the Court of Appeal president’s tenures, he has a chance to change the composition of the JAC so that appointments in future are to his favour.
Section 5 (1) of the JAC Act says, the JAC shall consist of the following members:
(a) the chief justice of the Federal Court, who shall be the chairperson;
(b) the president of the Court of Appeal;
(c) the chief judge of the High Court in Malaya;
(d) the chief judge of the High Court in Sabah and Sarawak;
(e) a Federal Court judge to be appointed by the prime minister; and;
(f) four eminent persons, who are not members of the executive or other public service, appointed by the prime minister after consulting the Bar Council, the Sabah Law Association, the Advocates Association of Sarawak, the attorney-general of the federation, the attorney-general of a state legal service or any other relevant bodies.
That would put the judiciary firmly in the control of the prime minister over time because he appoints five out of nine appointees. Even then, he has no clear obligation to follow the JAC’s choice.
Will he follow public clamour and interest to change the law accordingly? Not likely. It would take a statesman to do that, not a mere politician who is focused on maintaining power.
Merdeka is meaningless without the concomitant independence of the judiciary. Will Anwar kill independence or uphold it? We will know soon enough. - Mkini
P GUNASEGARAM is genuinely apprehensive about the future of our country. With no sign of change or reform, we are regressing fast.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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