Media Statement – 19/1/2023
Amend Federal Constitution and Judicial Appointments Commission Act 2009 to remove Prime Minister’s role in appointment and elevation of judges in Malaysia.
PM must disclose whether recent appointments is as per recommendation of the Judicial Appointments Commission or not.
MADPET(Malaysians Against Death Penalty and Torture) demands confirmation that the recent appointment of High Court Judges, Court of Appeal Judges, Federal Court judge, the new President of the Court of Appeal Tan Sri Abang Iskandar Abang Hashim, the new Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, the new Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli was as recommended by the Judicial Appointments Commission(JAC), and not the decision of the Prime Minister Anwar Ibrahim who ignored all or some of the recommendation of the JAC.
As it is now, the Federal Constitution in Article 122B(1) still states that ‘The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.’ There is a need for a speedy amendment of the Constitution to remove the Prime Minister, to be replaced by an independent Judicial Appointment Commission(JAC).
On September 26, 2007, about 2,000 lawyers of the Malaysian Bar gathered at the entrance of the Palace of Justice in Putrajaya, before marching to the Prime Minister’s Office to deliver the Bar Council’s memorandum, which amongst others called for an independent Judicial Appointment Commission (JAC) to select appoint judges. Concern about the independence in the selection of judges arose when a video emerged showing a lawyer discussing with a senior judge about appointments of judges.
The government responded positively in the enactment of Judicial Appointments Commission Act 2009 (Act 695), whereby the Commission was to submit recommendations to the Prime Minister. It was expected that the Prime Minister would follow the recommendation of the JAC and advice the King as such.
However, a task force in October 2022, alleged that 4 individuals appointed to the top judicial posts in July 2018 differed from those selected by the Judicial Appointment Commission (JAC) and conveyed to then prime minister Tun Dr Mahathir Mohamad in June 2018.
Given this, and the possible disregard of the Prime Minister to the recommendation of the JAC, there is a need to amend the Federal Constitution, to remove the role played by the Prime Minister in the selection and appointment of judges. It should be replaced with the JAC directly advising the King.
When it comes to the JAC, at present the Prime Minister plays a role in the appointment, and this need to be removed. Section 5(1) of the Judicial Appointments Commission Act 2009 now states that ‘The Commission shall consist of the following members: (a) the Chief Justice of the Federal Court who shall be the Chairman; (b) the President of the Court of Appeal; (c) the Chief Judge of the High Court in Malaya; (d) the Chief Judge of the High Court in Sabah and Sarawak;(e) a Federal Court judge to be appointed by the Prime Minister; and (f) four eminent persons, who are not members of the executive or other public service, appointed by the Prime Minister after consulting the Bar Council of Malaysia, the Sabah Law Association, the Advocates Association of Sarawak, the Attorney General of the Federation, the Attorney General of a State legal service or any other relevant bodies’
Thus, there is a need to amend the Judicial Appointments Commission Act 2009, to ensure that the 4 eminent persons are selected and appointed not by the Prime Minister.
The Conference of Rulers on 30/11/2022 also proposed the removal of the prime minister's power to appoint four representatives to the nine-member Judicial Appointments Commission (JAC), the body which proposes candidates to be made judges in the superior courts.
Negeri Sembilan's Tuanku Muhriz Tuanku Munawir, on behalf of the Conference of Rulers, also was reported saying that "To ensure the independence of JAC in carrying out its responsibilities, I propose that the appointment of its five members should not be made by the prime minister. "Instead it should be given to other institutions such as the Malaysian Bar Council, the Sabah Law Society, the Sarawak Bar Association and the Parliamentary Select Committee’[Malaysia Now, 30/11/2022]
Chief Justice Tengku Maimun Tuan Mat, on 9/1/2023 called for the amendment of the Federal Constitution, and the Judicial Appointments Commission Act 2009. She said that “We will not reach the objective of appointing judges without executive involvement, if the current provision (which requires executive consultation) remains,” She said the prevailing public perception of executive involvement in the appointment of judges must also be removed.[FMT, 9/1/2023]
The conviction of the previous Prime Minister Najib Razak, and the fact that many members or former members of the Cabinet have pending cases in court, makes it all the more urgent to remove the prevailing public perception of executive involvement in the appointment of judges. Will judges chosen or elevated by the Prime Minister be seen to be independent in cases involving the Prime Minister, his Cabinet members or even the government?
In court today, Prime Minister Anwar Ibrahim himself too has commenced several defamation suits in court, amongst others, against Muhyiddin Yassin, Kuala Terengganu MP Ahmad Amzad Hashim, Kedah Menteri Besar Datuk Seri Muhammad Sanusi Md Nor and Perak Pas chief Razman Zakaria. There is also the case of Yusoff Rawther, a former research assistant to Anwar, claiming sexual assault against Anwar that is still pending in court.
Noting the urgency and the current state of affairs, the Federal Constitution and the Judicial Appointments Commission Act 2009 must be speedily amended to remove the perception of executive involvement in the appointment and elevation of judges.
The required Bills should be tabled now at the upcoming Parliamentary session, and it should be passed easily considering that Anwar Ibrahim do have the support of more than two-thirds of the Members of Parliament, which is required for amendments of the Federal Constitution.
MADPET also calls for the immediate disclosure as to whether Prime Minister Anwar Ibrahim appointed and elevated judges as per the recommendation of the Judicial Appointments Commission, or that he opted to ignore the JAC recommendations, and appointed or elevated judges on his own. The names of judges appointed or elevated, different from those recommended by the JAC must be made known, and it will be best that these judges do consider recusing themselves from cases involving the government, or the Prime Minister, Cabinet members or politicians.
The perception that Malaysia has an independent judiciary is a matter of great urgency, and the needed amendment to the Constitution must not be delayed.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Agong presents letters of appointment to 21 judges at Istana Negara
KUALA LUMPUR, Jan 17 ― The Yang di-Pertuan Agong Al-Sultan Abdullah Ri'ayatuddin Al-Mustafa Billah Shah today granted an audience and presented the letters of appointment to 21 judges in a ceremony at Istana Negara here.
Raja Permaisuri Agong Tunku Hajah Azizah Aminah Maimunah Iskandariah was in attendance.
Leading the list was the new President of the Court of Appeal Tan Sri Abang Iskandar Abang Hashim followed by Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli and Federal Court Judge Datuk Nordin Hassan.
Also receiving their letters of appointment as Court of Appeal judges were Datuk Azman Abdullah, Datuk Azimah Omar, Datuk Lim Chong Fong, Datuk Collin Lawrence Sequerah, Mohamed Zaini Mazlan and Datuk Wong Kian Kheong.
Eleven judges appointed to the High Court were Datuk Norsharidah Awang, Tee Geok Hock, Datuk Zaleha Rose Pandin, Alice Loke Yee Ching, Datuk Azhar Abdul Hamid, Dr Arik Sanusi Yeop Johari, G. Bhupindar Singh, Mahazan Mat Taib, Ahmad Murad Abdul Aziz, Liza Chan Sow Keng and Wan Muhammad Amin Wan Yahya.
The ceremony was also attended by Minister in the Prime
Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina
Othman Said and Chief Justice Tun Tengku Maimun Tuan Mat. ― Bernama, Malay Mail, 17/1/2023
Sarawak’s Abang Iskandar is new Court of Appeal president
V Anbalagan
- January 16, 2023 2:22 PM
14 
Justices Abang Iskandar Abang Hashim (left) and Zabidin Diah have been performing the functions of their new positions since November.
PUTRAJAYA: Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim will be promoted to Court of Appeal president, making him the first judge from Sarawak to assume the post, sources said.
The sources also said Federal Court judge Zabidin Diah will be made Chief Judge of Malaya.
Abang Iskandar, 63, and Zabidin, 65, have been performing the functions and duties of these positions since last November.
The posts of Court of Appeal president and Chief Judge of Malaya are the second and third highest on the judicial ladder, respectively.
Federal Court judge Abdul Rahman Sebli, 63, will assume the role of the Chief Judge of Sabah and Sarawak, taking over from Abang Iskandar, the sources said.
They are expected to receive their appointment letters from the Yang di-Pertuan Agong, Sultan Abdullah Sultan Ahmad Shah, tomorrow morning before taking their oaths of office at the Palace of Justice in the afternoon.
At the same time, Court of Appeal judge Nordin Hassan will be elevated to become a Federal Court judge.
High Court judges Azman Abdullah, Azimah Omar, Collin Lawrence Sequerah, Zaini Mazlan, Wong Kian Keong and Lim Chong Fong will be elevated to the Court of Appeal.
Sequerah is the trial judge in former prime minister Najib Razak’s ongoing RM2.3 billion 1MDB corruption trial. He is also the trial judge in deputy prime minister Ahmad Zahid Hamidi’s corruption, criminal breach of trust and money laundering trial.
Zaini is presiding over Najib’s ongoing audit report tampering case. He also presided over Rosmah Mansor’s RM1.25 billion Sarawak rural schools’ solar energy project corruption case. He found Rosmah guilty of the charges in September last year.
Eleven judicial commissioners will be confirmed as High Court judges while five from the Bar and Judicial and Legal Services will be appointed judicial commissioners. - FMT, 16/1/2023
Remove executive’s role in judges’ appointment, says Chief Justice
V Anbalagan
- January 9, 2023 6:33 PM
283 Shares
166
81
32
Tengku Maimun Tuan Mat says the prevailing public perception of executive involvement in the appointment of judges must be removed.
PUTRAJAYA: The judiciary has proposed that provisions in the Federal Constitution be amended to remove executive involvement in the appointment of judges.
This was revealed by Chief Justice Tengku Maimun Tuan Mat, who said the suggestion was given by the judiciary to the task force probing former attorney-general Tommy Thomas’ book, “My Story: Justice In The Wilderness”.
One of the suggestions was that improvements should be made to the process of appointing judges.
“We suggested that there should be an amendment to the constitution to give effect to our proposal,” she told reporters after officiating a ceremony to open the legal year.
Tengku Maimun said the judiciary was collectively supportive of the task force’s proposal to the government.
“That is our general stand to improve the judiciary or the Judicial Appointments Commission (JAC). However, there must be meaningful engagement with all stakeholders to move forward,” she said.
Article 122B (1) states that judges and all administrative position holders shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consultation with the Conference of Rulers.
However, Section 27 of the Judicial Appointments Commission Act 2009 states that the prime minister may request for two additional names for consideration with respect to any vacancy to the offices of the Chief Justice, Court of Appeal President, Chief Judges of Malaya, and Sabah and Sarawak, and on the panels of the Federal Court and the Court of Appeal.
Tengku Maimun said any amendment to the 2009 Act would likely first require the Federal Constitution itself to be amended.
“We will not reach the objective of appointing judges without executive involvement, if the current provision (which requires executive consultation) remains,” she added.
She said the prevailing public perception of executive involvement in the appointment of judges must also be removed.
Tengku Maimun said she had also called for the new government to set up an independent judicial academy to cater to the training needs of superior court judges.
Last year the top judge announced that the government approved 25 acres of land in Nilai, Negeri Sembilan, alongside an existing magistrates’ court for the academy.
“In principle, the previous government had approved (the proposal), but when the final decision was communicated to us, they said judges should go to the judicial and legal service officers’ training institute due to a costing issue.
“As a matter of principle, judges should not be going there. Judges are not government officers,” Tengku Maimun said.
She said judges in the past never attended any course at the institute located in Bandar Baru Bangi.
“The person who issued the statement lacked understanding of the law and procedure,” she added.
Death threats
Meanwhile, sharing a personal experience in her role as Chief Justice, Tengku Maimun said she had been on the receiving end of death threats when presiding over cases involving certain personalities.
“In cases involving certain personalities, the support or criticism is extreme. People generally know that I myself have received death threats before.
“Whether those were serious threats or not is another question, but it has reached that level,” she said, according to Bernama.
When it comes to high-profile individuals, she said the comments directed at the judiciary were not constructive but excessive, one-sided and politically-motivated.
“I hope the people out there understand the structure of the country’s legal process before issuing any statements which show their lack of understanding.”
In August last year, the media quoted police as saying they had received reports of threats made against Tengku Maimun on social media and would be taking action against anyone found abusing such platforms to undermine security. - FMT, 9/1/2023
Malay rulers propose PM stay out of judges appointment body
They say a more balanced membership is needed so that appointments are not biased.
The Conference of Rulers today proposed the removal of the prime minister's power to appoint five representatives to the nine-member Judicial Appointments Commission (JAC), the body which proposes candidates to be made judges in the superior courts.
This followed a meeting by the rulers chaired by Negeri Sembilan's Tuanku Muhriz Tuanku Munawir, held for two days at Istana Negara beginning yesterday.
In its statement, the conference said the JAC in its present composition had weaknesses, adding that its membership was critical to ensure that only those with intergrity are appointed to judicial posts.
Presently, four of the nine JAC members are made up of senior judges, while the remaining five are appointees of the prime minister.
Tuanku Muhriz said a more balanced membership was needed so that appointments would not be biased towards any parties.
"To ensure the independence of JAC in carrying out its responsibilities, I propose that the appointment of its five members should not be made by the prime minister.
"Instead it should be given to other institutions such as the Malaysian Bar Council, the Sabah Law Society, the Sarawak Bar Association and the Parliamentary Select Committee," he said.
Tuanku Muhriz also called for JAC's structure to be reevaluated through discussions with the relevant institutions and stakeholders.
"When all this is implemented, I am confident JAC will be able to carry out its responsibilities more effectively, and choose and appoint only those individuals who have a noble character, and are transparent and fair, to become judges in Malaysia."
JAC was set up in 2009 to ensure an unbiased selection of judges for the consideration of the prime minister.
Critics have however questioned the provision allowing the prime minister to appoint the majority of the commission's members, as well as his power to remove them, saying it smacks of political patronage in the judiciary. - Malaysia Now, 30/11/2022
Why Malaysia’s lawyers march: Did the 2007 Walk for Justice change anything? Why are they marching again?
KUALA LUMPUR, June 17 — The Malaysian Bar plans to march to Parliament today to uphold the independence of the courts and speak out against any attempts to intimidate judges, and present a memorandum addressed to the prime minister on the matter.
This march will be one of the rare moments in the 75-year history of the Malaysian Bar, which currently represents 20,556 lawyers in Peninsular Malaysia.
But will a march by lawyers change anything? Have previous events ever nudged the Malaysian government to do what is right for the judiciary and the country?
Here, Malay Mail takes a quick look at the Malaysian Bar’s 2007 “Walk for Justice”, which is closest in aim to the upcoming “Walk for Judicial Independence”, and see what came of it. The information is based largely on resources publicly available on the Malaysian Bar’s website:
A history of marching when it counts
The Malaysian Bar actually has a long history of marching since it was founded in 1947, such as its April 7, 1981 walk from the Royal Lake Club to Parliament to protest against the government’s proposed amendments to both the Societies Act and the Federal Constitution, as well as the December 2005 and December 2006 peaceful marches from Dataran Merdeka to the Lake Gardens to mark the annual International Human Rights Day on December 10.
In the same year when the Malaysian Bar celebrated its 60th anniversary and had more than 12,000 members, it organised the Walk for Justice.
This was prompted by the September 19, 2007, release of a video clip showing senior lawyer VK Lingam speaking on the phone about or brokering the appointment of judges in Malaysia.
The Malaysian Bar’s governing body on September 22 held an emergency meeting and decided to present a memorandum to the government to call for a royal commission of inquiry (RCI) on the video clip incident, and on September 24 announced that it would present the memorandum after a peaceful walk on September 26.
On September 25, the government announced a three-member independent panel to investigate the video clip’s authenticity, but did not at that time announce an RCI.
What happened at the 2007 march?
On September 26, 2007, lawyers — numbering more than 1,000 or over 2,000 according to different reported estimates — gathered at the entrance of the Palace of Justice in Putrajaya, before marching to the Prime Minister’s Office to deliver the Bar Council’s memorandum.
Then-Malaysian Bar president Datuk Ambiga Sreenevasan was quoted by The Straits Times saying at the march: “We are walking for justice, we want judicial reform” and “Lawyers don't walk every day. When lawyers walk, something is wrong.”
The Malaysian Bar then handed over two memoranda to the prime minister’s aide.
The first memorandum was a letter addressed to the prime minister about the “latest crisis in the judiciary” as shown by the expose through a video clip of a lawyer’s lengthy discussion with a senior judge and the alleged brokering of the appointment and promotion of judges, with the Malaysian Bar urging the prime minister to strengthen the independence of the judiciary through judicial reform and to introduce a Judicial Appointments Commission (JAC) to restore public confidence in the judiciary.
The memorandum also urged for an RCI into the video clip. This was well before a government panel later also recommended for the inquiry to be held.
The other memorandum was the Bar Council’s paper on the setting up of an independent judicial commission, providing recommendations such as the composition of such a commission, the process to select judges and the characteristics of candidates.
What was the outcome?
On September 25, 2007, the Malaysian government formed an independent three-man panel to verify whether the video clip was authentic. This panel on November 9, 2007 then gave its report to the government and recommended for a commission of enquiry to be set up.
On December 12, 2007, an RCI was officially set up with five members, with five terms of reference, namely to determine the video clip’s authenticity, to identify the speaker, the person he was speaking to and persons mentioned in the conversation, to determine the truth of the phone conversation and whether there has been any misbehaviour of persons identified or mentioned in the video clip, and to recommend the appropriate course of action to be taken if any of them are found to have committed any misbehaviour.
Following RCI proceedings from January 14 to February 15, 2008, the RCI panel on May 9, 2008 gave its report to the Yang di-Pertuan Agong. The RCI panel’s report was made publicly available on May 20, 2008.
In the RCI report, the panel agreed with and supported the Malaysian Bar’s September 2007 memorandum to the government on the need to set up a JAC, having concluded that there were weaknesses in the process of appointment and promotion of judges and that having a judicial commission would provide more “transparency, accountability and good governance” which would then boost public confidence in the judiciary.
On April 17, 2008, then prime minister Tun Abdullah Badawi announced that the government proposed to set up a JAC, with the aim of making the nomination, appointment and promotion of judges a more transparent process.
It was also at this 2008 event that the prime minister recognised the contributions of the “six outstanding judges” — including two posthumously — who were affected by the 1988 judicial crisis, and announced goodwill ex gratia payments to them or their families. (The Bar Council together with the International Bar Association’s Human Rights Institute, LAWASIA and Transparency International–Malaysia had in August 2007 formed a panel of eminent persons to look into the 1988 judicial crisis and had in August 2008 released its report.)
The independence of the judiciary was strengthened when the Judicial Appointments Commission Act 2009 was gazetted on February 8, 2009.
In short, the government actually carried out the RCI and the JAC which the Malaysian Bar had pushed for in its 2007 walk.
Wait, there were other marches, too
After the 2007 Walk for Justice, the Malaysian Bar held two more marches, to uphold freedom of assembly and freedom of speech in Malaysia.
On November 29, 2011, the Malaysian Bar organised the “Walk for Freedom 2011: Peaceful Assembly Bill Cannot and Must Not Become Law!”, which reportedly was attended by about 1,000 persons in protest against the government’s Peaceful Assembly Bill which was said to have clauses that were too restrictive on the constitutional right to assemble, such as prohibiting street protests.
In the 2011 walk from the Royal Lake Club to Parliament, Malaysian Bar’s proposed alternative Peaceful Assembly Bill was delivered to then deputy minister in the Prime Minister’s Department Datuk Liew Vui Keong.
The Peaceful Assembly Act 2012 was gazetted on February 9, 2012.
In October 2012, the Malaysia Bar received the United Nations Malaysia Organisation of the Year Award, where the professional body was recognised as having admirably fulfilled its role as the guardian of the rule of law and defender of human rights and the public interest in Malaysia.
On October 16, 2014, the Malaysian Bar held the “Walk for Peace and Freedom” to condemn the use of the Sedition Act 1948 and to protest the multiple arrests, investigations and charges made under that law.
In the march from Padang Merbok to Parliament, which was estimated to be attended by between 1,000 and 2,000 lawyers, the Malaysian Bar’s memorandum was presented to minister in the Prime Minister’s Department at the time, Datuk Mah Siew Keong, who accepted it on behalf of the PM.
Zooming back to 2022
The judiciary has come under threat again, with online attacks ramping up in recent months against the judge who had heard and decided on former prime minister Datuk Seri Najib Razak’s trial over the misappropriation of RM42 million of SRC International Sdn Bhd, in what appears to be a bid to discredit the outcome of the trial.
The Malaysian Anti-Corruption Commission (MACC) on April 23 was reported confirming to local newspaper The Star that it had started its investigation on the SRC trial judge Datuk Mohd Nazlan Mohd Ghazali, later responding on April 28 to criticisms by insisting that it has the power to investigate public officers including judges and clarifying that investigations do not necessarily mean an individual has committed an offence.
Judges and the judiciary in general however are unable to defend themselves publicly against wild allegations, which was why the Malaysian Bar stepped in to help protect the dignity and integrity of the courts.
The Malaysian Bar on April 24 spoke out against the MACC investigation, and the Bar Council on May 4 said it had on April 29 held an emergency meeting before deciding to hold an extraordinary general meeting (EGM). On May 5, the Bar Council announced the date of the EGM as May 27. Also on May 4, six former Malaysian Bar presidents had also launched a petition urging the Bar Council to organise a walk.
On May 21, the MACC announced that it had completed its investigations in a case involving the judge, and said it had presented on May 18 the investigation papers to the Attorney General’s Chambers for further study and direction.
On May 27, the Malaysian Bar decided at an extraordinary general meeting (EGM) to support the Bar Council’s motion to organise a peaceful protest to uphold the judiciary’s independence, while also criticising the way that the MACC had publicly announced investigations on the judge for an indefinite period and without proper closure and said that such action amounts to an act of intimidation against the judiciary.
Lawyers
are expected to gather today at the Padang Merbok car park with plans
to continue with the march to Parliament, with Deputy Minister in the
Prime Minister’s Department Datuk Mas Ermieyati Samsudin expected to
accept the Malaysian Bar’s memorandum on the prime minister’s behalf. - Malay Mail, 17/6/2022
Malaysiakiniagainst Prime Minister Anwar Ibrahim's defamation suit.
Posts
No comments:
Post a Comment