[Editor’s Note: This is the fifth entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]
The result of the 2018 General Election in Malaysia has been described by some Malaysians as a ‘second Merdeka’. Indeed, the peaceful change of government was a remarkable triumph of the powerless over the powerful. A deeply entrenched and authoritarian regime that had coopted almost all state institutions to serve its political and kleptocratic ambitions was trumped by a determined citizenry. In the post-election period, there is great hope as well as widespread demands for reform and change. At the heart of the problem in Malaysia’s political landscape is the overly strong political executive, that had for a long time under Barisan Nasional’s dominant party rule, been able to monopolize political processes at every level and in every aspect. In this regard, it is crucial that the other branches of government be strengthened so as to be able to play a more effective role in checking executive power and ensuring a more even balance of power within the government.
Strengthening the Judiciary
The Malaysian judiciary suffers from a trust deficit. Part of this stems from the perception that despite the existence of a Judicial Appointments Commission, the Prime Minister (PM) has the last say and his choices are politically-inspired. The Judicial Appointments Commission Act 2009 provides the framework and processes for the role of the Commission in the appointment of judges of the Superior Courts and judicial commissioners. In light of the existing gaps, however, the Act must, therefore, be thoroughly revised and constitutionalized.
The Commission today is dominated by five senior judges. This lack of diversity in the Commission’s membership calls for a revamp: provisions of the Act should be amended to include a representative of the Bar, one academician, some lay persons, and one retired judge. In addition, to prevent potential conflict of interest, the Chief Justice must not be the Chairman, and more importantly, the recommendations of the Commission must be made binding on the PM. This will require amendments to Article 122B of the Federal Constitution. The existing situation is that most appointees come from the government’s Judicial and Legal Service. Members of the Bar, ethnic minorities, women, and academicians are underrepresented on our superior courts.
Just as with appointments, the PM and the Chief Justice play a pivotal role in the promotion of superior court judges, and seniority is not necessarily a decisive factor. Malaysia needs to examine other systems like those in India and Pakistan where ignoring seniority is regarded as an attack on judicial independence. Another potential pitfall for judicial independence is the fact that High Court judges can be transferred by the Yang di-Pertuan Agong on the recommendation of the Chief Justice after consulting the Chief Judges of the High Courts. This is a powerful tool for the Chief Justice to punish judges who do not toe the line. Furthermore, as things stand there are no clear-cut guidelines or conventions for determining the composition of a panel to hear an appeal at the Court of Appeal or the Federal Court. The Chief Justice of the Federal Court and the President of the Court of Appeal seem to have unfettered power to empanel a court and (it is alleged) to pack it with judges who may support a particular outcome. Conventions must be evolved to prevent this possibility.
Recently, another question has emerged with respect to judicial appointments in Malaysia – the role and position of an ‘Additional Judge’. Under Article 122(1A) of the Federal Constitution the Yang di-Pertuan Agong, on the advice of the Chief Justice, can appoint an Additional Judge to the Federal Court “for such purposes” or “for such period” as His Majesty may specify. The power of the Chief Justice is not reviewable by the courts. The person appointed as an Additional Judge may be of any age beyond the mandatory retirement age which is prescribed in Article 125(1) as 66 years plus a possible extension of six months.