Calls grow for judicial reforms to avoid future appointment disputes

SHAH ALAM - The Malaysian government’s recent move to enhance transparency in the appointment of superior court judges has been welcomed as a critical step to prevent recurring disputes in the judicial system.

Lawyer Mohamed Haniff Khatri Abdulla said this was the right direction forward and emphasised the need for continued efforts to review and strengthen the Judicial Appointments Commission (JAC) Act 2009, along with judicial appointment and promotion procedures.

"This is a positive sign because everyone knows that the concept of appointing and promoting judges needs to be thoroughly reviewed and refined to avoid becoming a future issue.

"The current vacancies in the positions of Chief Justice and President of the Court of Appeal are also the main concerns," he told Sinar.

Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said had earlier assured the public that the unity government was aware of the concerns raised through the 'Walk to Safeguard Judicial Independence.'

She said the government would address the issue responsibly and transparently in accordance with the Federal Constitution.

Azalina also announced that a Comparative Study of Judicial Appointment Systems is being carried out by the Legal Affairs Division (BHEUU) under the Prime Minister’s Department, in collaboration with Special Select Committees from the Dewan Negara and Dewan Rakyat.

To ensure long-term reform, Haniff proposed the formation of a Royal Commission of Inquiry, with royal consent, to evaluate the system in-depth.

"Appoint commissioners to be part of it with terms of reference that they wish to study and then give them time around nine to twelve months to conduct the study and provide recommendations.

"The main weakness in the judicial appointment process, as I see it, lies within the JAC itself, because it needs to be fully recognised under the Federal Constitution. Currently, there is no full recognition under Article 122B of the Federal Constitution.

"Article 122B states that four parties are involved in the appointment of judges, namely the Prime Minister, the Agong and the Conference of Rulers. Before the Prime Minister presents names to the Conference of Rulers, he may consult the Chief Justice.

"The JAC, on the other hand, only plays an advisory role to the Prime Minister and its recommendations are not constitutionally binding under Article 122B, so the Prime Minister is not obligated to follow them," he said.

Haniff also declined to comment on a proposed judicial tribunal discussed during a meeting between Pakatan Harapan MPs and Prime Minister Datuk Seri Anwar Ibrahim, saying the issue was not timely.

In a separate view, constitutional expert Associate Professor Datuk Dr Wan Ahmad Fauzi Wan Husain pointed out that judicial appointments were already covered within the Federal Constitution and should not be sensationalised.

He said if the Chief Justice post becomes vacant, the President of the Court of Appeal is constitutionally authorised to take over the duties. If that role is also vacant, the Chief Judge of Malaya can assume the responsibilities.

"The problem arises when this issue is polemicised by parties with vested interests. Generally, there are three groups voicing out on the appointment of the Chief Justice. The first are those who want Tun Tengku Maimun Tuan Mat's term to be extended because they believe her decisions have favoured their interests.

"Secondly, there are those who want to take advantage of the situation for political gain and thirdly, perhaps a small group that wishes for the appointment of judges by the Agong, in consultation with the Conference of Rulers, to no longer follow the advice of the Prime Minister, but instead be based on the recommendation of an independent commission," he said.