THE power of the prime minister to influence the appointment and
promotion of judges is too strong and needs to be curbed to protect the
independence of the judiciary, said Pakatan Harapan parties.
DAP said the matter should be included in its election manifesto.
PKR’s N. Surendran said the prime minister has the power to appoint
judges as the Yang di-Pertuan Agong was required to act on the advice of
the prime minister under the federal constitution.
“Article 122B as it stands, gives the power to appoint
judges to the prime minister. This is because by virtue Article 40(1),
the (Yang di-Pertuan) Agong is bound by the prime minister’s advice.”
He also said the independence of the judiciary can only be ensured by
removing the prime minister’s role in the appointment and promotion of
judges.
“Otherwise, the executive has too great an influence and power over
the judiciary,” said Surendran, adding that the proposal is in line with
PKR’s commitment to ensure the independence of key institutions.
The move was recently called for by pro-moderation group of prominent former civil servants, G25, who questioned the current laws
which did not oblige the prime minister to give any reason if he
rejected judges nominated by the Judicial Appointments Commission
(JAC).
DAP’s legal bureau chief Gobind Singh Deo said he will push for the
proposal to be included in the party’s election manifesto and talks are
being held over the matter.
“I would support any move to distance the prime minister from having any role to play in the appointment or promotion of judges.
“We should (include it in the manifesto). I would recommend that it
be included. Discussions are currently being held over a wide range of
topics, including this,” he told The Malaysian Insight.
Bersatu supreme council member Dr Rais Hussin Mohamed Ariff said the
proposal would ensure that the judges are “truly independent and not
beholden to anyone”.
However, he stopped short of saying whether Bersatu would include the proposal in its manifesto.
“A proper mechanism can be instituted to ensure this proposal be attained.
“As for the manifesto, kindly wait for the eventual announcement as
PH (Pakatan Harapan), though it has drafted the manifesto, is doing a
series of engagements with various stakeholders.”
Amanah vice-president Dr Mujahid Yusof Rawa said the party has always called for the judiciary to be independent.
“Judges should be independent. And the executive should not
interfere. And ‘yes’ to anything that will help the judiciary to be more
independent,” he told The Malaysian Insight.
Concerns over the prime minister’s powers in making judicial
appointments surfaced again this year when the government in July
announced the term extensions of Chief Justice Raus Sharif and Court of
Appeal president Zulkefli Ahmad Makinuddin by appointing them as additional judges upon reaching the retirement age.
G25 described the current constitutional provisions which made prime
minister the person who effectively decides on the appointments or
promotions of judges, as “unsatisfactory”.
The group said the Yang di-Pertuan Agong was constitutionally obliged
to act on the advice of the prime minister and this “gives rise to the
perception that the judiciary is beholden to the executive.
“It is proposed (that) the prime minister plays no role at all in the appointment of judges.
“Instead of the prime minister, JAC should recommend the names to the
Conference of Rulers (for their views) and, thereafter, to the Agong,”
it said in its report on “Invigorating economic confidence in Malaysia”,
released on Saturday in Kuala Lumpur.
Article 122B of the constitution provides that the appointments of
the chief justice, president of the Court of Appeal, chief judges of the
high courts, and other judges of the Federal Court, Court of Appeal and
high courts shall be made by the Yang di-Pertuan Agong, acting on the
advice of the prime minister, after consulting the Conference of Rulers.
Changing constitutional provisions, however, would require the
support of two-thirds of the Dewan Rakyat’s 222 MPs. The ruling Barisan
Nasional has 132 lawmakers, PH 88 and two are independents. – December
12, 2017.
~ The Malaysian Insight
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