From nine past presidents of the Malaysian Bar
The recent reminders by Chief Justice Tengku Maimun Tuan Mat and the Malaysian Bar regarding the importance of, and necessity for, an independent judiciary, and for the continuous strengthening of its independence, are timely and ought to be supported.
In the last week, there has been much ado about, and much misunderstanding on, what judicial independence is and should be in Malaysia.
Judicial independence simply means that the institution of the judiciary, the individual judges comprising therein, and the administration of justice, must be free from improper influence, manipulation, pressure or interference.
That the judiciary and its judges shall be insulated against inducement, harassment, vilification, threats and persecution.
That all actions and decisions of the judiciary and its judges are solely based on evidence and the law, irrespective of popularity or unpopularity of such actions and decisions. Judges are required to always do the right thing, not the popular thing.
Judicial independence must not only be effected, it must be seen to be effected.
The reasons for this are clear. The work of, and decisions by, the judiciary and its judges must be sound, fair and just. It must also be seen to be so.
This is so that all who live, work and invest in Malaysia will have utmost confidence that we may all look to the judiciary and its judges to right wrongs and protect us irrespective of our economic circumstance and standing in society.
This is needed to provide security of person, liberty and property, as well as to promote business and investments in Malaysia.
Put another way, if we do not have an independent judiciary, then we would have iniquity, injustice, abuse of power, authoritarianism, dictatorship and misery.
The above are fundamental truths.
To promote and safeguard judicial independence, features such as objectivity and independence in the appointment of judges, security of tenure for judges and security of remuneration of judges are important.
The judiciary is different from the legislature and the executive, which are the other constitutional branches of government.
Members of the legislature are elected via the popular vote, that is, the candidate obtaining the most votes wins.
The executive (Cabinet) is, by and large, also elected by the popular vote (save for appointed senators) and thereafter appointed by the Yang di-Pertuan Agong on the advice of the prime minister.
They must vacate office come the next election and may be re-elected again depending on the popular vote.
In this sense, members of the legislature and Cabinet are therefore generally accountable to the public and the popular vote.
Judges of the superior courts are not elected. They are interviewed and vetted by the Judicial Appointments Commission (JAC) for their background, qualifications and attributes such as integrity and diligence.
The selection of judicial candidates is, inter-alia, merit based.
After such a selection process, they are recommended by the JAC through the chief justice to the prime minister, who advises the Yang di-Pertuan Agong on such appointments or promotions of judges of the superior courts after consulting the Conference of Rulers.
The prime minister is thus the gatekeeper and has de facto say in appointments and promotions of judges.
Even with the Judicial Appointments Commission Act 2009 and the establishment of the JAC, it is said that there have been instances of the process being by-passed for selection of judges for appointment or promotion – resulting in appointments which in the minds of some, are a mixed bag of excellent, good or not so good.
These instances were not publicly known at the material time, hence may account for the lack of public comment. In any event, this underscores the need for further reforms to strengthen the process.
What has been said by Tengku Maimun and the Malaysian Bar on the need for reforms to continue strengthening judicial independence – including the removal or curtailment of the prime minister’s role in the appointments and promotions of judges of the superior courts (which would entail amendments to the Federal Constitution) – are consistent with the promises made in the Pakatan Harapan (PH) manifesto for the 2018 and 2022 general elections, as well as the public stance by Prime Minister Anwar Ibrahim (who is also the chairman of PH).
Likewise, the Malaysian Bar has been advocating for the removal or curtailment of the role of the prime minister in the appointment and promotion of judges, and for the JAC to provide its recommendations directly to the Yang di-Pertuan Agong for the appointments of judges of the superior courts, after consulting the Conference of Rulers.
The “Royal Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges” had also found in 2009 that the role of the prime minister in the appointment and promotion of judges of the superior courts was too extensive.
It recommended the formation of the JAC, and that it would only be on exceptional grounds that a prime minister may be inclined to reject the recommendation of the JAC – and in doing so, the prime minister must provide his/her reasons.
The prime minister has also been recently reported in the media as reaffirming his commitment to continue reforming the law in respect of the JAC to preserve the separation of powers and rule of law, which includes the independence of the judiciary.
Hence, the recent commotion by some is puzzling when the stakeholders appear to be ad idem (of the same mind).
The late Abdullah Ahmad Badawi was the prime minister in 2009 when the JAC was established as the historic first reformative step towards strengthening the independence of the judiciary.
Malaysia awaits a prime minister who will inspire further reformation.
Zainur Zakaria, Cyrus Das, Mah Weng Kwai, Kuthubul Zaman Bukhari, Yeo Yang Poh, Ambiga Sreenevasan, Ragunath Kesavan, Christopher Leong and Steven Thiru are former Malaysian Bar presidents.
The views expressed are those of the writers and do not necessarily reflect those of FMT.