CHIEF JUSTICE’S SPEECH
Tengku Maimun had said that when Prime Minister Anwar Ibrahim was the opposition leader, before the establishment of the Judicial Appointments Commission (JAC) he had raised concerns about the lack of transparency and potential executive interference in judicial appointments.
She said Anwar’s observation back then directly addressed the fundamental aspect of judicial independence.
Anwar had reportedly said then that the “power to appoint and remove is so rigidly and tightly handed to the prime minister’s discretion”.
Tengku Maimun said despite various criticisms levelled against the Judicial Appointments Commission Act 2009 (JACA) during the debates prior to its passing, the Act remained in force.
“I have been an ardent and firm believer in the independence of the judiciary, including the appointment of its judges. Hence I have steadfastly observed all the principles espoused in the Federal Constitution and the JACA 2009,” she was quoted as saying by Bernama.
Senior lawyer Gurdial Singh Nijar told CNA that there were questions from the legal profession about several appointments made in the judiciary recently.
One of those, he said, was the appointment of Hasnah Mohammed Hashim as Chief Judge of the High Court Malaya, the third highest judicial position in the country.
Hasnah was appointed to the position on Nov 12 of last year, after it had been left vacant for eight months.
“The appointment has to be recommended by the JAC and the chief justice (Maimun) has a role but they were apparently all bypassed. That is a concern as the role of the chief judge is not given its due recognition.
“The question raised is whether the process was adhered to or not. If it is not adhered to, what is the implication of the appointment?,” he asked.
Former attorney general Ahmad Terrirudin Salleh was also appointed as a Federal Court judge at the same time as Hasnah.
In a commentary in FMT in Nov last year, former Court of Appeal judge Hamid Sultan Abu Backer questioned if Hasnah and other judges who were appointed to several other positions were selected the proper way.
While he didn’t question their credentials, Hamid said all appointments should have been recommended by the JAC and that it was quite disheartening to learn from news reports that the JAC was left without a quorum until that month.
“It suggests that the appointments of Hasnah, Terrirudin and others may not have gone through the JAC and all the procedural niceties prescribed by law and good governance. At best, they may have been rushed through,” he said.
He said that while the correct people may have been appointed to the positions, the end couldn’t justify the means.
“After all, as judges and lawyers are apt to say, justice must not only be done, it must be seen to be done. By the same token, judges must not only be appointed, they must be appointed properly,” he had written.
CNA has reached out to the Prime Minister’s Office and government spokesperson Fahmi Fadzil for comments on the issue.
The JACA was established to ensure unbiased selection of judicial candidates for the consideration of the prime minister.
Tengku Maimun said that based on the constitutional provisions on the appointment of judges, no one other than the JAC and the prime minister could recommend candidates for appointment to judges’ posts in the superior courts.
She added that aspiring candidates must apply to the JAC for appointment as judicial commissioners and the commission also reviews the performance of sitting superior court judges and recommends them for elevation or promotion.
She said those decisions had always been made by a majority vote through a secret ballot if there was no consensus and that any form of circumvention of the provisions could render the appointments either unconstitutional or in breach of the law.
“In all my time as a member of the commission, I have not once interfered in the process. The candidate who gets recommended is therefore not the sole choice of the chief justice but either the choice of the majority or the collective decision of the JAC,” said Tengku Maimun, who is also the commission chairman.
She said the names of selected candidates are forwarded to the prime minister for appointment in accordance with the provisions of the Federal Constitution.
“The JAC Act 2009 does, however, allow the prime minister to not accept the candidates recommended by the JAC for appointments. In such cases, the prime minister can request for two more candidates,” she added.
The Malaysian Bar is a statutory body that regulates more than 20,000 lawyers in Malaysia.
Commenting specifically on the JAC, the nine ex-Malaysian Bar presidents said the importance of the commission and its onerous responsibilities of choosing the best candidates to serve as judges could not be emphasised enough.
“Not everyone is qualified to be a judge. As pointed out by the chief justice, judges serve a higher calling requiring not just excellent qualifications, but a special temperament and an ability to hand down judgments without fear or favour and without succumbing to pressure.
“It goes without saying that it also requires a sterling character, integrity and courage,” they added.
The former Bar members added that it was of “utmost concern”, and not coincidental when Tengku Maimun referenced the offence of interference in the judicial appointments process, and that this was a serious matter that must receive immediate attention and warranted an investigation.
“In countries where authoritarianism thrives, the first casualty is often the independence of the judiciary. Why? Because they are the institution that stands between the people and any abuse of power by the State, thus holding them in check.
“It is no wonder that they would be a target of attack by any government who has such leanings,” they said.
They added that it was evident from Tengku Maimun’s speech that there was a need to be vigilant to preserve the independence of the judiciary, given that it’s now internationally recognised for its independence, putting the country in the best position to attract investments.
“This is a result of years of the painstaking rebuilding of its weakened structures. Any backsliding into the unfortunate past must be stopped immediately lest the country and its people pay the price once again,” they said.
