It is the PM who decides, and the king who appoints after consulting the rulers.
Next, is Anwar obligated to take the recommendations of
the Judicial Appointments Commission (JAC) set up under the JAC Act
2009? No.
(a)
to select suitably qualified persons who merit appointment as judges of
the superior court for the prime ministerās consideration.
The keyword is for the prime ministerās āconsiderationā, which means he is not obliged to stick to the JACās choice.
But under Section 2, the prime minister must uphold the continued independence of the judiciary and must have regard to -
(b) The need for the judiciary to have the support necessary to enable them to exercise their functions;
(c)
The need for public interest to be properly represented regarding
matters relating to the judiciary, the administration of justice and
related matters.
Now we are ready to ask the questions.
It
was known months, no, years in advance that senior judges were
retiring, including the chief justice. Reports said nine senior judges
were retiring within two years, but Anwar could not take the time to
fill the gaps.
Yet
he found time to make 46 international trips to 34 nations during his
premiership, which began on Nov 24, 2022, according to reports.
If
each trip took just three days off his other duties, thatās 140 days
gone. Surely, he could have had time to deal with an impending judicial
crisis by working with the JAC proactively.
2. Why did he not extend the tenure of the two top judges by six months?
The
two top judges, the chief justice and the president of the Court of
Appeal, retired within a day of each other. Anwar could have bought
valuable time by simply following the usual procedure and extending
their terms by six months - he had the power to do so.
Why did he
not do this when he could have bought valuable time to make a considered
selection of good candidates with the help of the JAC?
Instead,
he has allowed a situation which horribly hinders a judiciary already
hobbled by overwork and rapid loss of senior judges.
3. Do all these help judicial independence and efficiency?
We can answer this one, despite anything that Anwar says. It does not.
Anwar
has a sworn duty under Section 2 of the JAC Act, as enumerated above,
to uphold judicial independence, give the judiciary support and
resources, and take care that the public interest is adequately
represented.
Anwar was seriously deficient in every single count
here, and he owes an explanation to the public, to Parliament, his
party, his coalition partners, and the opposition.
4. Was there an attempt by a Federal Court judge to influence the appointments?
We
know what Anwar will say regarding this - let the authorities
investigate. But so far, they have been investigating the leak of the
alleged minutes of a JAC meeting under the draconian Official Secrets
Act, which seeks to protect the government from legitimate concerns over
important issues.
Malaysiakini
has been questioned following a police report made about the leaks by
an aide of the Federal Court judge in question, but there appears to be
no investigation on the alleged attempt to influence judicial
appointments, potentially a far more serious and wide-reaching crime.
5. In the interest of transparency, why did Anwar not disclose the JAC list and the final list?
For Anwar to have submitted his list to the king, the JAC must have made its recommendations.
It
is important to disclose this list and the final list that Anwar
submitted, including an explanation to the public (remember the sworn
duty to public interest) why there were changes, if any.
6. Were these lapses because Anwar wanted to control the judiciary?
This is the natural question to ask given the sequence of events that has taken place.
By
not extending the chief justiceās and the Court of Appeal presidentās
tenures, he has a chance to change the composition of the JAC so that
appointments in future are to his favour.
Section 5 (1) of the JAC Act says, the JAC shall consist of the following members:
(a) the chief justice of the Federal Court, who shall be the chairperson;
(b) the president of the Court of Appeal;
(c) the chief judge of the High Court in Malaya;
(d) the chief judge of the High Court in Sabah and Sarawak;
(e) a Federal Court judge to be appointed by the prime minister; and;
(f)
four eminent persons, who are not members of the executive or other
public service, appointed by the prime minister after consulting the Bar
Council, the Sabah Law Association, the Advocates Association of
Sarawak, the attorney-general of the federation, the attorney-general of
a state legal service or any other relevant bodies.
That
would put the judiciary firmly in the control of the prime minister
over time because he appoints five out of nine appointees. Even then, he
has no clear obligation to follow the JACās choice.
Will he
follow public clamour and interest to change the law accordingly? Not
likely. It would take a statesman to do that, not a mere politician who
is focused on maintaining power.
Merdeka is meaningless without
the concomitant independence of the judiciary. Will Anwar kill
independence or uphold it? We will know soon enough.
