OCTOBER 12 — The announcement by the Prime Minister indicating a proposal that the Prime Minister would no longer have a say on the appointments of judges is most welcomed and a step in the right direction. We should however re-look and re-consider the further suggestion that the selection of judges or recommendations for appointment of judges is to be by Parliament through its Select Committee.
The selection and appointment of judges must be free from politics and political influence, whether from the Executive or Parliament. We must remember that the Judiciary acts as a check and balance not only of Executive and administrative powers and conduct; it is also a check and monitor of legislative power. The Judiciary interprets and gives effect to legislation, and checks the constitutionality of legislation enacted by Parliament. In general, the Judiciary stands, with the Constitution in hand, between the people and State excesses. Given this, it is not appropriate for either the Executive, acting through the Prime Minister or otherwise, or Parliament to be involved in the selection, appointment and promotion of judges.
It is a fundamental requirement that the Judiciary is to be independent, principled, courageous and of the highest integrity and excellence. The attributes are cumulative, in that having some or most of these attributes but lacking in one or more would not suffice. For instance, having all the other attributes but lacking courage makes the rest of the attributes superfluous, redundant and academic. This is because the Judiciary should be the last dependable bastion for justice and the rule of law.
The recent Senate hearings in the US with regards the vetting, confirmation and appointment of Brett Kavanaugh to the US Supreme Court is a clear example and reminder to us that such a process or similar process by legislature in the appointment of judges is not suitable for Malaysia. In the midst of the revelations and vitriol at the Senate hearings, the representations by Brett Kavanaugh at the said hearings and the reports in the media of a letter by hundreds of law professors from numerous universities, including Yale, Harvard and Columbia, expressing their views as to the inappropriateness of his candidature for office, the Senate voted to confirm him for appointment largely along political party lines. We do not want this for Malaysia; and our Judiciary and its judges must not and do not deserve to be subjected to such a political process.
If we adopt such a system, I would not be surprised if judicial candidates who are eminently qualified and suitable would for the wrong reasons nevertheless not be appointed, and conversely, less qualified or suitable candidates may be appointed. This sentiment is not a reflection of members of the present Parliament. It is rather a plea that the system for selection, appointment and promotion of judges must withstand the test of changes and time, and not be subjected to the vicissitudes arising from the political composition of Parliament.
In any event, it should be remembered that in the US, it is the President of the US who nominates the candidate for appointment to the Supreme Court, and the Senate which vets and confirms the nomination as a check and balance (the hearings are before the Senate Judiciary Committee and the vote is by the entire Senate), bearing in mind that in the US presidential system the Senate may not necessarily be controlled by the same political party from which the president is from. For the New Malaysia, it is not contemplated that it would be the Prime Minister of Malaysia who would nominate candidates for appointment to our superior courts (noting that Tun Mahathir is reported to have propositioned that the Prime Minister would no longer be involved in the appointments of judges), hence it is not appropriate for our legislature to vet and recommend any such appointments.
The selection of judges should be undertaken by an independent Judicial Appointments Commission, to be established under the Constitution, comprising of a diverse membership of qualified and eminent persons, and which Commission could make recommendations directly to the Yang di-Pertuan Agong for appointment or promotion.
* Christopher Leong is the former president of the Malaysian Bar.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.