Hamid said removing the prime minister’s role, whether in advising the king on these appointments or in appointing four members of the nine-person commission, would not guarantee the independence of the judiciary.
He also said it could pave the way for a “dictatorship of the chief justice” to take place, with the top judge also a member of the commission along with three other top judicial administrators and a senior Federal Court judge.
“Let’s say that the prime minister is successfully sidelined, preventing the appointment of any of ‘his people’. Does that guarantee that independent individuals would be appointed as judges?
“(Under such circumstances) I would not be surprised if a chief justice were to select judges of the same views to establish a quorum (of judges) who support their views on an issue, and who would go on to defend that view after retirement.
“Getting rid of the prime minister’s role isn’t the right way. This confrontation would only birth a counter-confrontation. Sidelining the prime minister to prevent a ‘dictatorship of the prime minister’ may see it being replaced by a ‘dictatorship of the chief justice’,” he said in a lengthy statement today.
Hamid, who served as Malaysia’s top judge from November 2007 to October 2008, said the current framework of the JAC must be maintained, and all parties involved must “make it work” rather than trying to boost their positions by sidelining others.
The issue of judicial appointments came into the spotlight recently when Chief Justice Tengku Maimun Tuan Mat supported the removal of the prime minister’s role in the appointment of judges. She said the move could help dislodge the perception of political influence in the judiciary and reinforce the impartiality of the judge selection process, ensuring that judicial appointments were grounded on merit.
A day later, Prime Minister Anwar Ibrahim announced that the government will review the Judicial Appointments Commission Act, which came into force in 2010, to ensure that the process of judicial appointments reflected transparency and the independence of the judiciary.
Tengku Maimun’s appointment
Hamid said he was puzzled as to why the issue of the prime minister’s role in judicial appointments was only gaining traction now.
In 2018, the Malaysian Bar had submitted a working paper to the government for a review of the judicial commission act over concerns that the process of appointing judges was not free from the influence of the executive.
Hamid said Tengku Maimun’s appointment in May 2019 did not go through the judicial commission, although the law was in effect at the time, according to the controversial memoir of former attorney-general Tommy Thomas.
Thomas had stated that he had suggested Tengku Maimun to then prime minister Dr Mahathir Mohamad, who had agreed and taken the matter to the Conference of Rulers for their approval.
Hamid said Tengku Maimun’s appointment, as the first female chief justice, was widely celebrated but no one had questioned whether the appointment had followed the procedure laid out in the law, which was already in effect at the time.