It is best that Malaysia’s sitting public prosecutor or attorney general, Ahmad Terrirudin Salleh, is not appointed a Federal Court judge.
It was reported that he was expected to be appointed as a Federal Court judge, with the possibility of later assuming the role of chief judge of Malaya and that the nomination had been submitted by the prime minister’s office for approval by the Conference of Rulers.
First, confirm whether the Judicial Appointments Commission recommended Ahmad Terrirudin Salleh to be appointed a Federal Court judge.
Was this part of a first recommendation of the JAC or was it an additional recommendation following a “request for two more names to be selected and recommended for his consideration with respect to any vacancy” made by the prime minister, pursuant to Section 27 of the Judicial Appointments Commission Act 2009?
Or, is the Prime Minister ignoring the recommendation of commission and forwarding his own name to the Conference of Rulers?
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We have to recall that:
Malaysia’s experience from such events as the 1988 Judicial Crisis and the 2008 Royal Commission on the Video Clip, has taught us that part of what ails our current system stems from (i) Executive subjugation of the Judiciary; (ii) the pivotal role granted to the Executive in relation to judicial appointments (iii) the lack of transparency and accountability in the judicial appointments process and (iv) there being too much power and discretion being placed in the hands of too few…
Hence, to preserve the independence of the judiciary, ensure that the executive, including the prime minister, has no more power to decide on judges’ appointments and elevations. This struggle led to the formation of the Judicial Appointments Commission.
Judicial Appointments Commission Act 2009 fell short and is criticised because it still retains power with the prime minister. The PM could still ignore the Judicial Appointments Commission’s recommendations.
What was needed was a constitutional amendment, to say that the king will act on the advice of an independent Judicial Appointments Commission, and no longer will the prime minister have the power to choose and decide on judges.
Why Ahmad Terrirudin Salleh should not be appointed
He is the current public prosecutor-attorney general, and he should be so until his retirement, unless removed for some serious misconduct or for good reason.
This security of tenure also ensures the independence of the public prosecutor-attorney general. There are many other judges or qualified persons in Malaysia who can be appointed a Federal Court judge and chief judge of Malaya.
If he is suddenly appointed a Federal Court judge, he will no more be the public prosecutor-attorney general.
Hence, is there a reason for the removal of this sitting public prosecutor-attorney general?
It was alleged that the previous public prosecutor-attorney general, Gani Patail had reportedly been replaced ahead of his retirement and amid the ongoing special taskforce probe on 1MDB, which he was involved in, where there was a risk that he may decide to prefer charges against then sitting Prime Minister Najib Razak?
Could it be that public prosecutor-Attorney General Ahmad Terrirudin Salleh may also be considering recharging Zahid Hamidi using Section 254A of the Criminal Procedure Code, which states:
where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given?
Could he be considering commencing prosecution against some others?
Zahid Hamidi – Decision whether he will be recharged outstanding
We recall that the former attorney general and public prosecutor Idrus Harun decided on the questionable discontinuation of Deputy PM Zahid Hamidi’s criminal case after the prosecution had proven a prima facie case on all 47 charges. The decision was delivered on 4 September 2023, one day before his last day in office.
One of the possibly acceptable reasons was that there was a need for further investigation by the Malaysian Anti-Corruption Commission, based on matters raised in the letters of representations submitted by Zahid.
The deputy PM was then given a discharge not amounting to an acquittal.
Ahmad Terrirudin Salleh was then appointed as attorney general-public prosecutor on 6 September 2023, and according to the law, he has the power to reinstate the trial after discharge.
Many have been waiting for the completion of the MACC investigations, and for the decision of attorney General-public prosecutor Ahmad Terrirudin whether to recharge Zahid Hamidi on all 47 charges, or some of them, or not.
People are waiting also for the reasons provided by Ahmad Terrirudin, as the attorney general-public prosecutor, for whatever decisions made.
As the new attorney general-public prosecutor, he has the power to review the decision of his predecessor, Idrus Harun, and indicate whether he agrees or not.
Whether Zahid Hamidi is guilty or not should be up to the court to decide. In this case, the prosecution had already managed to overcome the biggest hurdle, in proving a prima facie case for not some charges but all 47 charges. This means that if Zahid Hamidi, during his defence stage, fails to raise reasonable doubt, he would be convicted and sentenced. Any ‘new evidence’ that Zahid may have, he can submit to court and let the court decide.
The discontinuation of the case robs the court of its jurisdiction or power in this criminal trial.
Attorney general-public prosecutor Ahmad Terrirudin may be now of the position that it be best that the court decides – so, he may tender all ‘new evidence’ to the court to let the court decide. He may not want to deny the court the power to decide on guilt or innocence.
One wonders whether it is this worry about what the current attorney general-public prosecutor Ahmad Terrirudin may do or not do, be it with Zahid Hamidi’s case or maybe the commencement of prosecution against others, that is a consideration of why he should speedily be removed as attorney general-public prosecutor and maybe made a Federal Court judge.
Post-retirement conduct and perception of independence while in office
Former attorney general ldrus Harun, after discontinuing the case against Zahid Hamidi, was appointed on 10 October 2023 as chairman of Amanah Raya Bhd (AmanahRaya), a trustee company owned by Minister of Finance Incorporated. The finance minister is Prime Minister Anwar Ibrahim.
This appointment of Idrus Harun could raise the question, whether this was a ‘thank you’ gift from Prime Minister Anwar?
Maybe this appointment has no connection with what he did in Zahid’s case, but the primary concern here is public perception.
Independence of judiciary and of the public prosecutor
For the preservation of the independence of the judiciary and of the public prosecutor, their security of tenure until retirement age must be respected. No judge or public prosecutor should be removed prematurely, even for reasons like their appointment as a judge or public prosecutor. They can and should only be removed for dereliction of duty by a fair and just mechanism for the removal of judges or the public prosecutor.
Malaysians Against Death Penalty and Torture (Madpet) also believe it is best that former judges, former public prosecutors and senior public officers are not also appointed to any post-retirement position by the government, government-linked entities or even the corporate sector. This is to preserve the public perception that they were truly independent, dispelling the possibility of ‘corruption’ or abuse of power while in office.
A ‘cooling off’ period should be mandatory as part of the condition of their appointment as judges, public prosecutors and senior officers in law enforcement and public bodies.
Madpet calls for a constitutional amendment that removes the role of the prime minister or the executive branch of government in the appointment of judges and the public prosecutor. The independent Judicial Appointments Commission should advise the king on judicial appointments.
In the interim, the Prime Minister must follow the commission’s recommendation on the appointment of judges, including the chief judge of Malaya.
Madpet calls for respect and the safeguarding of the independence of the judiciary and of the public prosecutor.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.
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