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27 December 2022
The fact that names of judges being considered to be appointed 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 are parties of suits.
Impact on Perception of Independence of Judiciary
One media report suggested that 3 serving judges, being 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 (AG). (FMT, 21/12/2022). An earlier media report mentioned serving Court of Appeal judge Datuk Seri Kamaludin Md Said and serving High Court judge Datuk Wan Ahmad Farid Wan Salleh. (Star, 16/12/2022).
Serving judges ought not be considered or appointed as Attorney General or to any other positions by the Prime Minister, Ministers and/or the government.
This is also because such a move has a tendency to impact negatively on the fact and/or perception of the independence of the Malaysian judiciary and individual judges.
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 comes into effect, including security of tenure until the retirement age of 66. This independence also includes independence from influence and/or orders from the Prime Minister and the government.
Attorney General only need qualification to be Federal Court Judge
It is best that a senior public officer, being 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 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/she must only be ‘…(a) he is a citizen; and (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…’
MADPET (Malaysians Against Death Penalty and Torture) 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 3 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 that ‘…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 the said 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 perception that the independence of these judges has been compromised by such actions/omissions of 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.
Attorney General/Public Prosecutors Must Be Independent of Prime Minister or Government
In a recent Zahid Hamidi (now Deputy Prime Minister)’s 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.(Sun, 23/9/2022). Were the prosecution actions/omissions due to the Public Prosecutor, acting for the interest of the government of the day? In any event, prosecution did file an appeal in this case to the Court of Appeal, and the next case management at the Court of Appeal is fixed for 10/1/2023. (The Edge Markets, 22/11/2022)
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 need to be removed.
MADPET believes that it is better that a senior and suitable member of the AGC be appointed as the Attorney General – noting also that the appointment of others, including former or serving judges, have raised concerns in recent years about ‘selective prosecution’ and questionable use of prosecution powers in certain cases.
Ahmad Maslan, the UMNO Secretary General’s acquittal on money laundering charges by the High Court on 29/9/2022, after he paid a compound of RM1.1 million (US$239,000) is one such case of questionable use of prosecution powers.
Expedite the removal of the Prime Minister in appointing judges
One of the measures that is currently being fought for to ensure independence of judges has been the removal of the Prime Minister’s powers in appointment, and to that end many including MADPET have been calling for the selection and appointment of judges 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 recommendation of the Judicial Appointment Commission, and some may not.
Article 122B of the Constitution now states that ‘(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 provision that provide for the appointment of judges, on the advice of the Prime Minister must be repealed, removing the Prime Minister’s role, and 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 be seen as independent of the Prime Minister and the government to restore the credibility of prosecution and judges, and to ensure the right to fair trials and 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 the needful to ensure that the perception of the independence of our judges and courts is strengthened.
There may also need to extend the safeguards to ensure independence to Session Court judges and Magistrates. The jurisdiction of Session Court judges has today been extended to include matters that were previously the sole discretion of High Court judges.
These judicial officers, including Session Court judges and Magistrates should all reasonably be under the Judiciary, and no longer under the Judicial and Legal Service Commission, where the Attorney General is a Commission member.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Source: https://charleshector.blogspot.com/2022/12/serving-judges-must-not-be-considered.html
