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Judicial appointments must be free from political influence by executive, legislature

A royal commission of inquiry into the judiciary is needed

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The Malaysian Bar refers to news reports that Prime Minister Dr Mahathir Mohamad recently said, “Parliament will screen the candidates in the appointment of judges and for certain other posts before submitting the names to the Yang di-Pertuan Agong.”

While it is timely and appropriate for Parliament to screen appointments to key positions in public institutions, this is not the case in respect of the appointment of judges.

The announcement indicates that the prime minister will no longer have a role in the appointment and promotion of judges. Nevertheless, judicial candidates should not be screened by Parliament.

The appointment of judges must be entirely free from political influence — and any perception of political influence — by the executive (including the prime minister) as well as the legislature.

The judiciary must be wholly independent from political interests and executive intervention, in order to perform its role effectively in a system of separation of powers with checks and balances, where each branch of government is able to check the powers of the other branches to prevent any abuse of power.

An independent judicial appointments commission must be established under the Federal Constitution and tasked to make recommendations directly to the Yang di-Pertuan Agong. The composition of the commission must include not just representatives of the judiciary, but also all stakeholders in the administration of justice, including the Attorney General’s Chambers, the Malaysian Bar, the Advocates Association of Sarawak, the Sabah Law Society, legal academics, and civil society. The ultimate decision on appointments should rest with the commission, after which the prime minister submits the commission’s recommendation(s) to the Conference of Rulers.

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The Malaysian Bar calls on the government to incorporate these proposals into the reform of the judiciary, in pursuit of what is set out in Principle IV of the Latimer House Principles, namely “[a]n independent, impartial, honest and competent judiciary”, which is “integral to upholding the rule of law, engendering public confidence and dispensing justice”.

George Varughese is president of the Malaysian Bar.

23 October 2018

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