LETTER | Promote top judges from within judiciary, not from AGC

LETTER | Project Stability and Accountability for Malaysia (Projek Sama) calls upon the Madani government to commit to nominating candidates for the four top positions in the judiciary, from within the judiciary and not from the Attorney-General’s Chambers (AGC).

The positions include the chief justice of Malaysia, the president of the Court of Appeal, the chief justice of Malaya and the chief justice of Sabah and Sarawak.

Projek Sama views with grave concern the speculation that Attorney-General Ahmad Terrirudin Mohd Salleh would be appointed as Federal Court judge to subsequently assume the office of the chief justice of Malaya.

Projek Sama warns Prime Minister Anwar Ibrahim that this move may deliver the third most serious blow to the public trust and credibility of the judiciary after the 1988 constitutional crisis and the 2002 VK Lingam "correct! correct! correct!" video clip exposed in 2007.

The government must learn from history and avoid repeating it.

While Article 123 of the Federal Constitution allows any citizen who has been practising law for 10 years either as a lawyer or a member of the judicial or legal services, to be appointed as a judge of any level, Projek Sama believes the appointment to the top echelon of the judiciary from the top echelon of the AGC should be avoided, especially before the separation of the AGC and public prosecution.

The AGC is controlled by the executive from the top and as legal counsel of the government, the AG is a political office even if the office holder is not a politician.

Appointing a former AG to the Federal Court risks introducing the executive's influence to the bench, or at the very least, creating such a perception to affect the public trust in the judiciary.

A case in point is that Terrirudin applied for a discharge not amounting to an acquittal (DNAA) for Deputy Prime Minister Ahmad Zahid Hamid who faced 47 charges of criminal breach of trust, and corruption after a prima facie case had been established.

Even though the decision was allegedly made by his predecessor, Idrus Azizan Harun, Terrirudin played a key political role in getting the number two of the executive off the defendant's stand.

He also sat on the Federal Territory Pardons Board which controversially commuted 1MDB corruption convict Najib Abdul Razak's 12-year jail term by half and fine from RM210 million to a mere RM50 million.

Public trust

What public image would our judiciary have if he eventually rises to be the chief judge of Malaya, the president of the Court of Appeal or even the chief justice of Malaysia?

Would the public trust the court to be impartial with a panel of judges that includes him or is led by him?

Set up in 2009, the Judicial Appointment Commission (JAC) is responsible for appointing judges to the judiciary. Five of the committee members are appointed by the prime minister, while the remaining four slots are filled by sitting judges. The Yang di-Pertuan Agong makes the appointment on the advice of the premier.

However, there are still concerns, among others, over the PM’s power to ignore or reject the candidates the JAC shortlisted.

Projek Sama urges Anwar to both respect the recommendations made by the JAC and commit to promoting senior judges from within the judiciary when talents are aplenty.

He should also commence a review of the Judicial Appointments Act 2009 to ensure the separation of powers between the judiciary, executive and legislative branches of the government, in particular where judge appointment at all levels is concerned.

Projek Sama refers to a research report by Bersih titled “Safeguarding Judicial Independence: Appointment, Promotion and Removal of Judges in Malaysia” and reiterates the recommendations needed.

PROJEK SAMA is an initiative to advocate for institutional reforms to advance political stability and accountability.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.