The prime minister should have no role in the appointment of judges with the Judicial Appointments Commission (JAC) as an independent body under the Federal Constitution, two retired judges said.
Gopal Sri Ram said the constitution needs to be amended to empower the JAC to propose names for appointment directly to the Yang di-Pertuan Agong after consulting the Conference of Rulers.
“The prime minister, as head of the executive arm of the government, should have no role in the judges’ appointments,” he said in response to the Memorandum of Understanding (MoU) between the federal government and Pakatan Harapan (PH) on “political stability and transformation”.
One of the six areas they agreed upon is the independence of the judiciary, although details are scant.
The support from opposition MPs for any empowerment of the JAC is vital as a two-third majority is needed to amend the constitution.
Sri Ram said the current legal position was that the prime minister could override the JAC’s proposals, and this did not reflect well on the judiciary as the guardian of the constitution.
He said an overhauled JAC must also interview judges and nominate those with good track records to be elevated to the High Court, Court of Appeal and Federal Court.
“Non-performers should not be promoted or else they would end up as passengers with only two or three drivers,” he said, adding that their written judgments must be evaluated as it will show if they are competent or not.
Sri Ram, who retired as a Federal Court judge, said the public, who included the taxpayers, have the right to get the services of the best legal minds on the bench.
He said there must also be provisions in the constitution and the JAC Act for promotions of senior lawyers and High Court judges straight to the Federal Court.
Sri Ram said High Court judges like Collin Lawrence Sequerah, Mohamed Zaini Mazlan, Mohd Nazlan Ghazali and Wong Kian Keong had the potential to be elevated and their “talent should not be wasted.”
Retired Court of Appeal judge Mohd Hishamudin Yunus, meanwhile, said a Royal Commission of Inquiry (RCI) into a video clip scandal in 2007 had revealed how political patronage seemed to play a part in the appointment and promotion of judges.
“This is detrimental to the judiciary,” he said, alluding to several witnesses, including a former prime minister, who gave evidence in the 2007 proceedings.
Hishamudin said the present composition of JAC members is tilted towards serving judges.
The JAC comprises nine members – four top judicial administrators led by the Chief Justice while the prime minister appoints a senior Federal Court judge and four other eminent persons.
“Five JAC members are appointed by the prime minister. This is unhealthy as he is a politician and also head of the executive. There is a real risk that he will not appoint independent-minded persons to the JAC,” he added.
He said some JAC members could be nominated by way of competition.
“A committee could interview candidates with the best among them earning seats in the JAC,” Hishamudin said, adding that this was practised in the United Kingdom. – FMT