PUTRAJAYA (Jan 8): Chief Justice Tun Tengku Maimun Tuan Mat hopes the present and future governments will uphold the cause of judicial independence to ensure the country's economic growth.
Tengku Maimun said since the judicial crisis of 1988 until now, the judiciary has been on the road to recovery in terms of perception of judicial independence.
“Incidentally, 15 years ago, before the Judicial Appointments Commission Act 2009 (JAC) was enforced, the then leader of the Opposition made comments on the appointment of judges and judicial independence.
“I am certain that now, as prime minister, Datuk Seri Anwar Ibrahim and his government will remain true to those comments by continuing to unreservedly remain committed to upholding the cause of judicial independence,” the CJ said of her hopes for her and the country’s aspiration of an independent judiciary.
The CJ said that when he was the opposition leader, Anwar had expressed strong views on the infamous Datuk VK Lingam incident, and the Parti Keadilan Rakyat (PKR) president had concluded that the JAC Act was not enough to restore the independence of the judiciary.
“Anwar went on to observe that there is a perception that persons who had decided in favour of the government were promoted,” she said.
Tengku Maimun said Anwar’s observation relates directly to the fundamental aspect of judicial independence, in that perception plays a big part in it.
Turning the annals of time to more than 30 years ago, the CJ said that one could not deny that the 1988 judicial crisis was a blemish on Malaysia’s history.
“This one crisis itself tarnished the independence of the judiciary and paved the way for further incursions into the institution. In its aftermath, we also witnessed completely unsettling events, like the VK Lingam tapes.
“Most heinously, revelations were made that certain persons were literally deciding on who should become judges, specifically as a means of reward, as though appointments of judges can be used as bargaining chips. This event called for an independent judicial appointments process to ensure that tarnished candidates do not stand a chance of appointment,” she said.
Public cannot expect judicial independence if appointments are made with favour
She added that the public could not be expected to have confidence in the judicial institution, no matter how hard its judges work, if the pervading public perception was that judges are appointed or elevated upon the favour of making decisions that, by default, support the government or certain business interests.
“Applying it to us, making the irredeemable mistake of rendering one decision coloured with bias, or appointing one candidate that is only chosen as a favour, throws into question the integrity of the entire judiciary, and none of the decisions delivered after that will engender the public’s confidence and trust, even if that decision is absolutely correct on the facts and the law,” the CJ warned.
The top judge also cited the importance of having judicial independence and cited a Nobel 2024 prize winner for Economics, whose research empirically showed the importance of strong institutions, a key one being the judiciary, in fostering long term and sustainable economic growth.
Tengku Maimun said it takes decades to instil a level of trust and confidence in the judiciary, and the goal had largely been realised when Malaysia had improved on all major rule of law and judicial independence indices, when, in 2023, the country ranked 55th out of 142 countries worldwide, which was a significant 23-place jump from the country’s ranking in 2016.
JAC should never be influenced
Tengku Maimun noted that the mechanism of the JAC Act 2009 is far from perfect, and noted that no person other than the JAC and the PM can recommend candidates for superior court appointments.
She said any form of circumvention of these provisions would render those appointments either unconstitutional or in breach of written law.
“For this reason, no person, whether it be the president of the Malaysian Bar, any advocate or solicitor, any political party, the Attorney General, or any other person for that matter, has any business recommending names to the PM for appointment.
“For if this is done, not only has the judiciary been trampled upon; its independence been transgressed and eroded; it is an attempt to interfere with the course of justice by influencing the operations of the judiciary.
“And any name so considered on such improper advice runs the risk of being challenged via judicial review as being either unconstitutional or in breach of the law. Any person so found to have done this also runs the risk of being charged with an offence,” Tengku Maimun said in citing provisions in the JAC that stipulates that whoever interferes with the JAC’s functions commit an offence and can be liable to a fine of RM100,000 or jailed for not more than two years, or both.
The CJ said being a firm believer of an independent judiciary, the JAC was only one part of the appointment process.
She said that as she neared the end of her tenure, she sincerely hoped those responsible for the appointment of judges remember their commitments to their oaths and duties under the constitution and law.
“[I hope the leader] continues to hold true to past comments or commitments that they may have made regarding the fair, independent and unadulterated appointment of judges. I hope that the appointment of the next CJ is fully compliant with all aspects of the law, bearing in mind the need to keep the judiciary independent in view of the unfortunate and blemishing events of history,” CJ said.