Needing PM’s nod for promotion hurts judiciary’s independence, says Malaysian Bar

The Bar said the right of veto over promotion creates the perception that the prime minister can abuse his discretion to block the elevation of Judges. File picture shows Malaysian Bar president Steven Thiru. — Picture by Saw Siow Feng
The Bar said the right of veto over promotion creates the perception that the prime minister can abuse his discretion to block the elevation of Judges. File picture shows Malaysian Bar president Steven Thiru. — Picture by Saw Siow Feng

KUALA LUMPUR, Sept 22 — The Malaysian Bar expressed its concern today over necessary approval from the prime minister before judges may be promoted, after a retired appellate judge alleged he was not promoted as Datuk Seri Najib Razak did not favour the move.

The Bar said the decision is objectionable considering the lack of transparency in the prime minister’s decision-making process, and is a breach of the judiciary branch’s independence.

“It creates the impression or perception that the prime minister can abuse his discretion to block the appointment or elevation of Judges that the Prime Minister considers to be not partial to the government,” Bar president Steven Thiru said in a statement.

“This unbridled power, in the hands of the prime minister — a member of the Executive — is a serious encroachment on the independence of the Judiciary under our constitutional scheme, which vouchsafes the principle of separation of powers.”

Under Section 26 of the Judicial Appointments Commission Act 2009, the Judicial Appointments Commission (JAC) submits to the Prime Minister its recommendation for judges to be elevated, after due deliberation and decision.

However, the prime minister is not obliged to accept the JAC’s recommendation, or to provide any reason for rejecting the recommendation.

Section 27 of the Act also allows the prime minister to request “…for two more names to be selected and recommended for his consideration…”, following which the JAC must comply and undertake the selection process all over again.

In an interview published in the Sunday Star, retired Court of Appeal judge Datuk Hishamudin Yunus has said he was never promoted to the Federal Court because Prime Minister Datuk Seri Najib Razak did not agree with the recommendation by the JAC.

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