The fact that the names of judges being considered for appointment as attorney general have been reported in media is a threat that may affect the perception of the independence of judges – noting also that the courts do hear cases involving ministers, politicians and the government as parties of suits.
Impact on perception
One media report suggested that three serving judges – Federal Court judge Zabidin Diah and Court of Appeal judges Yaacob Sam and Abdul Karim Abdul Jalil – are being considered for appointment as the next attorney general.
An earlier media report mentioned serving Court of Appeal judge Kamaludin Md Said and serving High Court judge Wan Ahmad Farid Wan Salleh.
Serving judges ought not be considered or appointed as attorney general or to any other positions by the prime minister, ministers or the government.
This is also because such a move has a tendency to affect negatively the fact or perception of the independence of the Malaysian judiciary and individual judges.
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Would we be confident of the independence of these judges in cases where one of the parties is the prime minister or government?
After a High Court, Court of Appeal and Federal Court judge is appointed, safeguards to ensure the independence of the judiciary come into effect, including security of tenure until the retirement age of 66.
This independence also includes independence from influence or orders from the prime minister and the government.
It is best that a senior public officer – a federal counsel or prosecutor from within the Attorney General’s Chambers – or any lawyer be appointed as the attorney general.Remember that all that Article 145 of the Federal Constitution states about the needed qualification to be appointed attorney general is that [he or she should be] a “person who is qualified to be a judge of the Federal Court”. It does not say a serving or retired judge must be the attorney general.
All that is required for a person to be qualified to be a judge of the Federal Court – and the meaning of this is stated in Article 123, which says that he or she must only be “(a) … a citizen; (b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another”.
Malaysians Against Death Penalty and Torture (Madpet) takes the position that a serving Federal Court or Court of Appeal or High Court judge must never be considered, let alone be appointed by the King on the advice of the prime minister to be the attorney general. They should remain judges until retirement.
Judges just retired also preferably ought not be appointed attorney general, and Madpet adopts the position that there ought to be a ‘cooling-off’ period of at least three years before appointment, to avoid the perception of ‘rewards’ for things done whilst serving as judges.
The Judges Code of Ethics 2009, in Article 5 states: “A judge shall exercise his judicial function independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason.”
As such, now following these media reports, the government of Prime Minister Anwar Ibrahim must clarify matters, including whether any sitting judges were met and offered the position of attorney general.
We need to remove the perception that the independence of these judges has been compromised by such actions or omissions of the government and others.
We need to restore confidence in Malaysian judges to reassure us that cases involving ministers, politicians and even the government will always be treated independently and impartially by our judges.
In the recent Zahid Hamidi (now Deputy Prime Minister) foreign visa system (VLN) case, in deciding not to call Zahid to enter his defence and then acquitting him, the High Court judge found that the “prosecution failed to make out a prima facie case on all the charges”, whereby he also mentioned that key witnesses were not called, and material evidence not adduced.
Were the prosecution’s actions or omissions due to the public prosecutor acting for the interest of the government of the day? In any event, the prosecution did file an appeal in this case with the Court of Appeal, and the next case management at the Court of Appeal is fixed for 10 January 2023.
Article 145(1) of the Federal Constitution states that “The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation”. The King must act on the advice of the prime minister.
In Malaysia, the attorney general is also the public prosecutor, and public prosecutors too need to act professionally and impartially; hence it is most important that the attorney general (also the public prosecutor)’s appointment be done independently, and as such the role of the prime minister in the selection and appointment process needs to be removed.
Madpet believes it is better that a senior and suitable member of the Attorney General’s Chambers be appointed as the attorney general – noting also that the appointments of others, including former or serving judges, have raised concerns in recent years about selective prosecution and the questionable use of prosecution powers in certain cases.
Umno secretary general Ahmad Maslan’s acquittal on money laundering charges by the High Court on 29 September, after he paid a ‘compound’ of RM1.1m (US$239,000) is one such case of questionable use of prosecution powers.
Expedite removal of PM’s role
One of the measures that is currently being fought for to ensure the independence of judges has been the removal of the prime minister’s powers in the appointments [of judges].
To that end, many, including Madpet, have been calling for the selection and appointment of judges to be done by an independent body, like maybe the Judicial Appointment Commission, who can then advise the King directly.
As it is, some prime minister may follow the recommendations of the Judicial Appointment Commission and some may not.
Article 122B of the Constitution now states:
‘(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….”
This provision and similar provisions that provide for the appointment of judges, on the advice of the prime minister must be repealed, removing the PM’s role, [to be] replaced by an independent body, possibly a more independent Judicial Appointments Commission.
Madpet calls for the appointment of the attorney general/public prosecutor and judges to be seen as independent of the prime minister and the government. This is to restore the credibility of the prosecution and judges, and to ensure the right to fair trials and [uphold the principle] that all persons are equal before the law and entitled to the equal protection of the law.
Madpet calls on the prime minister and government to do what is needed to ensure that the perception of the independence of our judges and the courts is strengthened.
There may also need to extend the safeguards to ensure independence to Sessions Court judges and magistrates. The jurisdiction of Sessions Court judges has today been extended to include matters that were previously the sole discretion of High Court judges.
These judicial officers, including Sessions Court judges and magistrates, should all reasonably be under the judiciary, and no longer under the Judicial and Legal Services Commission, where the attorney general is a commission member.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture