Election & Judiciary: Upholding Judicial Independence Despite Change of Government.

On 12.10.2022, Lim Kit Siang alleged that ‘the 15^th General Election was called not for the nation but to save Umno’s ‘court clusters’ from facing the brunt of law’.[1] On 10.11.2022, Tun Dr Mahathir Mohamad alleged that Zahid Hamidi wants to win the polls to avoid being imprisoned by the court[2].

Why were these statements made? Shouldn’t the judiciary be impartial in making its decision? Isn’t it the rule of law that all persons are equal before the law?

In this write-up, I will discuss the following:

1. the importance of an independent judiciary;
2. the judicial appointment process in Malaysia; and
3. concluding remarks.

*I pause to say that this write-up does not discuss the Attorney General’s prosecutorial discretion. The power to prosecute or discontinue any proceedings for an offence vests in the Attorney General and not the judiciary.

B. Importance of an independent judiciary

The sovereign power of Malaysia is exercised via 3 constitutional organs viz the legislature (the parliament), executive (the government), and judiciary (the judges). The Malaysian Constitution[3] adopts the principle of ‘separation of powers’ i.e. there should be a clear distinction of functions and  check and balance between the 3 organs.

The Judiciary is the bulwark of the Malaysian Constitution in ensuring the Executive and Legislature act within their constitutional limits and that they uphold the rule of law.[4]

An independent judiciary is therefore important so that these functions can be carried out impartially. I can do no better than to quote the words of HRH Raja Azlan Shah CJ – ‘Every legal power must have legal limits, otherwise there is dictatorship’.

So, what is the judicial appointment process in Malaysia? Is it transparent and free from influence from the government? We will now examine this.

C. Judicial appointment process in Malaysia

Before 2009, the judicial appointment process is governed solely by article 122B(1) of the Federal Constitution which provides that the chief justices ‘shall be appointed by the Yang di-Pertuan Agong (“YDPA”), acting on the advice of the Prime Minister.’ Reading this article together with article 40 which requires the YDPA to accept and act in accordance with the Prime Minister’s advice, it appears that, the Prime Minister makes the final decision in selecting the Chief Justices.

A much-lauded reform was brought about in 2009 wherein the Judicial Appointments Commission Act 2009 (“the Act”) was introduced by the Malaysian Government led by the then prime minister Tun Abdullah bin Ahmad Badawi. The purpose of this statute is to provide for the establishment of the Judicial Appointments Commission (“commission”) and to uphold the continued independence of the Judiciary.[5]

I will now discuss the 2 main parts of the Act (a) the composition of the commission and (b) the selection process. I will also draw a comparison with the judicial appointment process in the UK and South Africa.

Composition of the commission.

Section 5 of the Act provides that the commission shall consist of the following members:

the Chief Justice of the Federal Court;

1. the President of the Court of Appeal;
2. the Chief Judge of the High Court in Malaya;
3. the Chief Judge of the High Court in Sabah and Sarawak;
4. a Federal Court Judge to be appointed by the Prime Minister; and
5. 4 eminent persons, who are not members of the executive or other public service, appointed by the Prime Minister.

As shown above, the power to select the ‘4 eminent persons’ as well as ‘a Federal Court Judge’ still vests with the Prime Minister.

Whereas in South Africa, their Judicial Services Commission comprised a total of 25 members. They consist 3 senior judges including the chief justice who presides, the minister of justice, four practising lawyers including two advocates and two attorneys (appointed within the profession), one law academic (appointed within the profession), six members of the National Assembly of whom at least three are from the opposition, four permanent delegates of the National Council of Provinces, and four persons appointed by the president after consulting the leaders of the parties in the National Assembly.

It appears that the composition of the Judicial Services Commission in South Africa is more diverse and that the power of the prime minister to appoint members to the commission is more restricted.

In fact, the Bar Council Malaysia has recommended the appointment of eminent persons be done by a parliamentary select committee[6] based on the rationale below:

1. the purpose of making the judicial process independent may be defeated if the Prime Minister had nominees in the commission; and
2. the fact that the appointments of the non ex–officio members (eminent persons) are in the hands of the Prime Minister is wholly repugnant to the principle of separation of powers.

The selection process

The main function of the commission is to select suitably qualified persons who merit appointment as judges for the prime minister’s consideration.[7] During the selection process, the commission will submit a recommendation report as to who has been selected to be recommended for the appointment to the Prime Minister[8]. After receiving this report, the Prime Minister may disagree with the report and request 2 more names to be submitted.[9] It appears that the Act is silent as to whether the commission’s recommendations are binding on the Prime Minister.

Whereas in the UK, the recommendation by the commission is binding on the Prime Minister of which he must appoint a person recommended by the commission.[10] Again, the Bar Council Malaysia has made similar observations that the Act is vague and imprecise in that it is arguable that the Prime Minister may appoint someone not recommended by the commission.

D. Concluding Remarks

Based on the above, I opine that the Judicial Appointments Commission Act 2009 can be further improved to uphold the continued independence of the Judiciary.

The principle of separation of powers is the foundation of the Constitution. The Judges are the Guardians of the Constitution.

Even the slightest thought to interfere with the independence of the Judiciary is appalling. With the polls looming, the new Malaysian Government (whether it is Barisan Nasional, Pakatan Harapan or Perikatan Nasional) must continue to uphold the independence of the judiciary through concrete institutional reform. Political parties cannot on the one hand say they observe the rule of law and on the other hand, turn a blind-eye to the inadequacies of the Act.

Lastly, I wish all Malaysians happy and safe voting!

[1] https://www.nst.com.my/news/politics/2022/10/839745/kit-siang-ge15-save-umno-and-bn-court-clusters

[2] https://www.facebook.com/TunDrMahathir

[3] The Constitution is the Supreme Law of Malaysia.

[4] Lim Kit Siang v Dato’ Seri Dr Mahatir Mohamad [1987] CLJ Rep 168

[5] Preamble of the Act.

[6] Bar Council’s Comments on the Judicial Appointments Commission Bill 2008 dated 17.12.2008. https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/bar-council-s-comments-on-the-judicial-appointments-commission-bill-2008.

[7] Section 21 of the Act.

[8] Section 26 of the Act.

[9] Section 27 of the Act.

[10] Section 26(3) of the UK’s Constitutional Reform Act 2005.