AGC's stance on judge appointments at odds with PM's non-interference

Summary

• The AGC’s position that the prime minister need not follow the JAC’s recommendations seems contrary to Anwar’s commitment not to interfere with the judiciary.

• Lawyer Azira Aziz says there’s a need for the JAC to have the authority to nominate judges directly to the Agong, without the prime minister’s advice.

Amid fears about regressing judicial independence, the Attorney-General’s Chambers (AGC) issued a statement today on judicial appointments and the Judicial Appointments Committee’s (JAC) role in it.

However, the AGC’s statement appeared to be in stark contrast to Prime Minister Anwar Ibrahim’s public position on the matter.

On June 30, Anwar rebuffed calls to grant Tengku Maimun Tuan Mat a six-month extension as chief justice, maintaining that he does not interfere with the judiciary and that judicial appointments must go through proper processes.

Under the Federal Constitution, the appointment of most judges is done through recommendation by the prime minister - in consultation with the chief justice - to the Yang di-Pertuan Agong.

But since 2009, judicial appointments were supposed to be made based on recommendations from the JAC, which was formed in response to the VK Lingam judge fixing scandal in 2007.

‘PM not a mere conduit’

However, the AGC today implied that the constitutional position is supreme and that the JAC’s recommendations can be rejected.

“The allegations that there were delays in the appointment (of judges) and failure to act on prior nominations (by the JAC) must be seen from a constitutional perspective.

“The prime minister can’t be considered a mere conduit to accept recommendations from any quarters, but instead has a constitutional responsibility to advise the Yang di-Pertuan Agong to protect the independence, credibility, and integrity (of the judiciary),” the chambers said.

Besides being at odds with Anwar’s remarks on June 30, the AGC’s latest position also seems contrary to the prime minister’s defence of the JAC in April.

This was in response to a lawsuit arguing that the commission was unconstitutional and that judicial appointments should follow the Federal Constitution only.

“While we will vigorously defend the law in court, the government is also committed to undertaking a comprehensive review of the JAC framework,” Anwar had said.

The AGC’s position today is also at odds with the fact that appointments by the prime minister make up five of nine JAC members, and have a decisive vote when it comes to picking nominees.

The AGC statement today was issued in response to PKR lawmakers led by Pandan MP Rafizi Ramli expressing concern that nominees picked by the JAC under recently retired chief justice Tengku Maimun Tuan Mat’s watch are being bypassed.

There are also concerns that a Federal Court judge accused of alleged judicial interference is poised to be appointed to a key judicial position.

Rafizi has called for a Royal Commission of Inquiry (RCI) and the parliamentary special select committee (PSSC) on institutional reforms to investigate these allegations.

‘Judicial appointments should be disconnected from PM’

Commenting on the recent developments, lawyer Azira Aziz said that it would be a “conflict of interest” and an “ethical dilemma” for the current government to be involved in the judicial appointment process. 

Azira reminded that many politicians still have both civil and criminal cases, either pending or concluded, and that the current prime minister himself had also been formerly convicted and then pardoned for specific charges.

“Giving someone (like Anwar) who was subject to the justice process the right to decide the head of the judiciary would only suggest a conflict of interest.

“For this reason, I am in favour of the JAC being able to directly nominate the top judiciary positions to the Agong, without the prime minister’s advice,” she told Malaysiakini. 

Meanwhile, lawyer Andrew Khoo welcomed the move by Rafizi and the PKR backbenchers to push for an RCI, but cautioned that this would be a long drawn out process.

In the meantime, he urged the JAC to also come forward and “help clear the air and stop further speculation” regarding the concerns about appointments and judicial interference allegations.

“We are all interested in transparency and accountability, so if the JAC could consider doing this, it could help resolve the situation,” he said.

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