Restoring our judiciary’s independence begins today
13 June 2018
Lawyers for Liberty welcomes the resignation of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin effective 31 July 2018.
Although the erosion of judicial independence has been decades in the making, the shocking move by the previous BN administration to usher in the re-appointments of Raus and Zulkefli as CJ and Court of Appeal president respectively, through the back door, took Executive interference in the judiciary to new heights. Worse, their appointments as ‘additional judges’ were blatantly unconstitutional, but they hung on for almost a year despite the barrage of criticisms and legal challenges filed against them.
Nevertheless, their departure is only the first step in restoring the tarnished reputation of our judiciary. The composition of the Judicial Appointments Commission (JAC), currently comprised of seven senior judges/former judges, a former state attorney-general, and one academic, must be reformed to ensure that the selection and elevation of future judges will be devoid of political consideration. Senior and more qualified judges should no longer be overlooked and frozen out of promotion in favour of junior judges.
Further, the current top-judiciary heavy composition of the commission should be diversified, and the other members of the commission should no longer be appointed by the Prime Minister as presently practiced.
A prominent example to emulate is the UK’s JAC, which comprises of fifteen commissioners, twelve of whom are appointed through open competition, the other three are selected among judges by the judges’ council. Among others, the commission includes a healthy mix of members from civil society, academia, lawyers, and judges from all levels of the judiciary throughout the UK, who are appointed in their own right, and not representative of their respective professions. They are also expected to disclose any personal interests upon becoming a commissioner.
In line with this excellent model, Malaysia’s JAC should seek to broaden its depth of knowledge, expertise and independence by appointing commissioners other than the respective heads of the Federal Court, Court of Appeal, High Courts of Malaya and Sabah/ Sarawak and other senior judges. Efforts must be made to include representatives from Malaysian legal bodies (Malaysian Bar, Sabah Law Society and Advocates Association of Sarawak), civil society, lawyers and academia.
The road ahead to restore Malaysia’s judiciary to its past glory will be long and arduous, and the resignation of Raus and Zulkefli is just the beginning. We look forward to a time when Malaysia’s judiciary will be truly independent and be respected once again in the Commonwealth.
Lawyers for Liberty