Unconstitutional appointments of the Chief Justice and President of the Court of Appeal undermine the independence of the judiciary
10 July 2017
Lawyers for Liberty view with extreme concern the appointment of Tan Sri Dato’ Seri Md Raus Sharif and Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin through the unusual process of “additional judges” under Article 122(1A) of the Federal Constitution and their subsequent extension as Chief Justice (“CJ”) and President of the Court of Appeal (“PCA”) respectively.
Many have voiced their concerns that the appointments are unconstitutional including former CJ Abdul Hamid Mohamad, former Federal Court Judge Gopal Sri Ram, Malaysian Bar President George Varughese and many others from the legal fraternity, and we too concur that these appointments are unconstitutional.
What are the special circumstances for the CJ and PCA to be appointed in such controversial manner? We are indeed shocked and appalled by these appointments which can only be described as a desperate attempt by Prime Minister Najib Razak to further undermine the independence of the judiciary.
Further these appointments would also give rise to serious questions as to why other capable Federal Court judges could not be appointed as CJ and PCA and why the processes under the Judicial Appointments Commission Act 2009 were bypassed.
These appointments do not bode well for Malaysia, as now more than ever, the nation needs a strong and independent judiciary to check the rampant abuse of power and corruption by the government, none more emblematic than the massive 1MDB scandal.
It is a widely known fact that the reputation of the judiciary never recovered from then Prime Minister Mahathir Mohamad’s attack on the judiciary in 1988 which culminated in the sacking of the Lord President and two Supreme Court Judges. Its reputation worsened considerably over the many Anwar Ibrahim trials and appeals, widely derided as unfair and politically motivated.
There are many other scandals that have plagued the judiciary including the findings of the Royal Commission of Inquiry on the V.K. Lingam judge-fixing video clip and the unprecedented appointment of former Umno lawyer Tun Zaki Azmi directly to the Federal Court and his subsequent appointment as CJ a year later, that have further damaged the judiciary’s credibility.
In a functioning democracy, it is essential that there should be separation of powers among the three arms of the Government – the Legislature, the Executive and the Judiciary. An independent judiciary is fundamental to democracy as it distinguishes a democratic state from a totalitarian one. This ensures a system of check and balance, rule of law and the absence of abuse of power.
To carry out its role and function, the judiciary must be independent, and judges must be concerned only with upholding the cause of justice without fear or favour. There must not even be a whiff of controversy in the appointment of judges, what more the CJ or PCA. Needless to say, there should not be any public perception that judges are beholden politically to the government and they are not free to act in an independent and unbiased manner. It is this independence that gives the public confidence in the judiciary.
Although successive BN governments are largely to blame for the dismal state of our judiciary, the judges themselves cannot escape scrutiny for their failure to resist the encroachment of the executive upon judicial independence.
The Malaysian judiciary was once held in very high regard in the Commonwealth but surely not anymore, and these controversial appointments can only further erode its reputation.
The judiciary is once again being tested and we call upon the judges to stand strong and defend uncompromisingly their independence, to uphold and defend the Constitution as they have sworn to do so, and reject the unconstitutional appointments of the CJ and PCA.
Lawyers for Liberty