Commission to Deal with the Appointment and Promotion of Judges. To What Extent the Doctrine of Separation of Power is being Practised?

The time for a better mode of appointment and promotion of judges has finally arrived. Thanks for the sensitivity of the current government under Pak Lah to restore public’s confidence in our judiciary and the transparency in the appointment and promotion of judges in Malaysia. Thanks also to the fact that Nazri Aziz, the “asalkan boleh” Minister for not being reappointed to be in charge of legal matters. If you read today’s Mingguan Malaysia, especially on the interview with former Judge, Shaikh Daud, you will agree with me on Nazri Aziz, whom I would describe to be the “yes man” Minister. He was against the proposal of having the Commission to appoint judges. He was also against the setting up of the Royal Commission of Inquiry into Lingam’s video clip. Oh my GOD! I really hate this man, Nazri Aziz. But I am not going to discuss on the “sometimes no brains” man here.

If you read carefully my first sentence, I chose the word “better” instead of “the best”. I do believe in the doctrine of separation of power. A lot of people also believe in the doctrine but they do not practice it. It is a very important principle that will ensure the three main bodies in any country i.e. the legislative, the judiciary and the executive mind their own business without interfering in other’s business.

However, in Malaysian context particularly in the appointment and promotion of judges, though the decision is that of the Yang Di Pertuan Agong after consulting the Conference of Rulers, His Majesty is actually acting on the advice from the Prime Minister. In other simple words, whoever that the Prime Minister recommend to be appointed as judges, His Majesty shall agree and act accordingly. This is expressly stipulated in Article 122B of the Federal Constitution which provides as follows:-

(1) 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.

(2) Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice.

(3) Before tendering his advice as to the appointment under Clause (1) of the Chief Judge of a High Court, the Prime Minister shall consult the Chief Judge of each of the High Courts and, if the appointment is to the High Court in Sabah and Sarawak, the Chief Minister of each of the States of Sabah and Sarawak.

(4) Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice, President or a Chief Judge, the Prime Minister shall consult, if the appointment is to the Federal Court, the Chief Justice of the Federal Court, if the appointment is to the Court of Appeal, the President of the Court of Appeal and, if the appointment is to one of the High Courts, the Chief Judge of that Court.

(5) This Article shall apply to the designation of a person to sit as judge of a High Court under Clause (2) of Article 122AA as it applies to the appointment of a judge of that court other than the Chief Judge.

(6) Notwithstanding the dates of their respective appointments as judges of the Federal Court, of the Court of Appeal or of the High Courts, the Yang di-Pertuan Agong, acting on the advice of the Prime Minister given after consulting the Chief Justice, may determine the order of precedence of the judges among themselves.

So, who is in actual fact appoints the judges? Is it really His Majesty or the Prime Minister? I would say that constitutionally, it is the Yang Di Pertuan Agong but in reality, it is the Prime Minister. If anybody who does not agree with me, I would like to ask one simple question here. Why did you think the then Yang Di Pertuan Agong who “appointed” the former Chief Justice i.e. Ahmad Fairuz was not called to testify during VK Lingam’s video clip inquiry? Instead of the Yang Di Pertuan Agong, the former Prime Minister, Tun Dr Mahathir (who had merely gave the advice on the appointment) was called. Why?

So, in the light of Article 122B of the Federal Constitution, there is no separation of power in that sense, as the Prime Minister (the Executive) has the power and control over the Judges (the Judiciary). Under the actual doctrine of separation of power, the three bodies i.e. Judiciary, Executive and the Legislative are equal in power and no one is supposed to be above another.

While it is good that Pak Lah has agreed to accept the long outstanding proposal to set up the commission to look into the appointment of judges (of course by changing his legal advisor from the less competent Nazri Aziz to the more competent Zaid Ibrahim), it is the best if the Commission is given the power to advice the Yang Di Pertuan Agong directly without going through the Executive. From what I understand, with the setting up of the Commission, the Commission will discuss and make a proposal to the Prime Minister, who, if agree with such proposal will advice the Yang Di Pertuan Agong accordingly. Again, the Prime Minister is in the picture. In this case, the Prime Minister may agree and may not agree with the recommendation made by the Commission, which is also means that the Prime Minister can still recommend candidates of his own choice to become the judges. If that is allowed to happen, I would say that the setting up of the Commission is no more than a formality.

So, my suggestion is, first to amend the Federal Constitution especially Article 122B to take away the role of the Prime Minister in the appointment and promotion of judges. Second is to introduce the power and jurisdiction of the Commission into the Federal Constitution. In this context, we can have a more reliable and transparent mode of appointing and promoting the judges and rest assured, the doctrine of separation of power will be in place and Malaysia can be a better place to live in and more importantly, people like Lingam will be handicapped in that sense.