IT is regrettable that the government has not dealt with the subject judicial appointments to the Federal Court has with the decisiveness and transparency that the subject calls for. Its continued silence on the subject is untenable. Firstly, it has conducted itself in a manner that, although possibly objectively justifiable, has fuelled unhealthy speculation and set the stage for unfair attacks on the Chief Justice, Tun Tengku Maimun Tuan Mat, and thus the judiciary as a whole. Secondly, the judiciary is not in any position to defend itself nor is the Judicial Appointments Commission (JAC) empowered to engage with the public on matters within its purview. It is only the government that can address matters.
Take, for instance, the office of the Chief Judge of Malaya having been left vacant for a period of about eight months, Datuk Seri Hasnah Mohammed Hashim having only been appointed to that office in November last year to succeed her predecessor who had retired in February. No reason was given for this delay, giving rise to a question as to whether the prime minister opposed the recommendations of the JAC, the body tasked with identifying suitable candidates.
Public speculation deepened when it was announced that Tan Sri Ahmad Terrirudin Mohd Salleh would be appointed directly to the Federal Court. This implied that the prime minister had advised the Yang Di-Pertuan Agong on this as, although the YDPA is the appointing authority, the YDPA is legally obliged to act on the advice of the prime minister.
This was curious, given that there were serving judges who were suitable candidates for promotion to the Federal Court. There is no constitutional convention that a retiring attorney general be given priority candidacy in appointments to the apex court. In the circumstances and given the fact that Terrirudin had not previously served as a judge in the High Court or the Court of Appeal, questions arose as to why the appointment was made and whether the JAC had recommended it. Muddying the waters further, it appeared that the prime minister had only decided on the appointment of Hasnah after having decided that Terrirudin be appointed.
Understandably, speculation deepened, and the rumour mill went into overdrive, encouraged by the failure of the government to address personal attacks on the Chief Justice over her call for reform to the judicial appointments process. This is a subject that the Chief Justice, as the chairperson of the JAC, was fully entitled to speak out on.
The situation has become even more serious as the government continues to remain silent on whether the tenures of Tengku Maimun, Tan Sri Abang Iskandar Abang Hashim, the president of the Court of Appeal, and Tan Sri Nallini Pathmanathan will be extended. There is no obvious reason why this should not be the case. All three have served with great distinction, and their continued service can only be to the benefit of the judiciary.
This unfortunate situation has allowed for a perception that the judiciary has become factionalised, with the prime minister favouring one over the other, to take hold. It is no less problematic that this may not be the case, the perception being sufficient to raise doubts as to the integrity of the judicial appointments process.
As the prime minister is well placed to appreciate, public confidence in the administration of justice requires more than a complement of judges, and the necessary infrastructure. For it to serve its constitutional role, it is imperative that the judiciary have the confidence of the public, both domestically and internationally. For that to be the case, the judiciary must be viewed as being discernably separate from the executive and the legislative arms, and independent of the political elements that bear down on them.
That this is the case is not open to debate. Judicial independence has been consistently affirmed by the highest court of the land as being vital to the separation of powers, which serves as a bulwark against tyranny. This is not a recent contrivance. In 1978, the late Raja Azlan Shah CJ (as His Highness then was) famously said:
Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression.
An independent judicial appointments process is central to the judiciary being viewed as independent. The JAC Act 2009 was enacted to promote this aim, having regard to the deleterious effects of the 1988 constitutional crisis. Speaking of the then intended JAC bill in 2009, the late Tun Abdullah Ahmad Badawi, the then prime minister, acknowledged that the level of trust and respect for the judiciary was not as strong as it used to be, the nation not having recovered from the events of 1988.
It was plain that neither had the judiciary. As became apparent during the proceedings of the Royal Commission of Inquiry (RCI) into the notorious VK Lingam video clip in 2008, former prime minister Tun Dr Mahathir Mohamad had approached the question of judicial appointment in a manner that can only be described as contemptuous of the role of the judiciary. This approach became a focal point of the RCI’s report, which paved the way for the enacting of the JAC Act.
It is not insignificant that Parliament considered it necessary to establish the JAC and to vest it with the necessary powers “to select suitably qualified persons who merit appointment as judges of the superior court for the prime minister's consideration” to ensure that the recommendations of a prime minister to the YDPA as to the appointment of judges of the superior courts were objectively justifiable.
The discretion of the prime minister, such as it is, is curbed by the duty to uphold the “continued independence” of the judiciary and to “defend that independence”. To that end, the JAC is obliged to assess candidates based on specified objective criteria, including “integrity, competency and experience”. The prime minister only has the latitude to seek that two further names be provided in respect of all appointments except the High Court.
The JAC Act can be improved and the call for reform by the Chief Justice is warranted. This is, in my view, not just regarding the role of the prime minister in the appointment of judges, but also with respect to the composition of the JAC and the transparency of its processes. In the meanwhile, however, the JAC Act as it stands applies. The prime minister is not free to act as he subjectively deems fit. As emphasised earlier, he is under a duty to ensure the continued independence of the judiciary and to defend that independence.
That starts with addressing the situation at hand and taking steps to address the impact of all that has occurred. I would think that no one knows better than the prime minister that an effective and independent judiciary is vital for the rule of law.
Datuk Malik Imtiaz Sarwar practises law in Kuala Lumpur and is an opinion leader on constitutionalism and the rule of law.