THE power of the prime minister to influence the appointment and promotion of judges is too strong and needs to be curbed to protect the independence of the judiciary, said Pakatan Harapan parties.

DAP said the matter should be included in its election manifesto.

PKR’s N. Surendran said the prime minister has the power to appoint judges as the Yang di-Pertuan Agong was required to act on the advice of the prime minister under the federal constitution.

“Article 122B as it stands, gives the power to appoint judges to the prime minister. This is because by virtue Article 40(1), the (Yang di-Pertuan) Agong is bound by the prime minister’s advice.”

He also said the independence of the judiciary can only be ensured by removing the prime minister’s role in the appointment and promotion of judges.

“Otherwise, the executive has too great an influence and power over the judiciary,” said Surendran, adding that the proposal is in line with PKR’s commitment to ensure the independence of key institutions.

The move was recently called for by pro-moderation group of prominent former civil servants, G25, who questioned the current laws which did not oblige the prime minister to give any reason if he rejected judges nominated by the Judicial Appointments Commission (JAC).  

DAP’s legal bureau chief Gobind Singh Deo said he will push for the proposal to be included in the party’s election manifesto and talks are being held over the matter.

“I would support any move to distance the prime minister from having any role to play in the appointment or promotion of judges.

“We should (include it in the manifesto). I would recommend that it be included. Discussions are currently being held over a wide range of topics, including this,” he told The Malaysian Insight.

Bersatu supreme council member Dr Rais Hussin Mohamed Ariff said the proposal would ensure that the judges are “truly independent and not beholden to anyone”.

However, he stopped short of saying whether Bersatu would include the proposal in its manifesto.

“A proper mechanism can be instituted to ensure this proposal be attained.

“As for the manifesto, kindly wait for the eventual announcement as PH (Pakatan Harapan), though it has drafted the manifesto, is doing a series of engagements with various stakeholders.”

Amanah vice-president Dr Mujahid Yusof Rawa said the party has always called for the judiciary to be independent.

“Judges should be independent. And the executive should not interfere. And ‘yes’ to anything that will help the judiciary to be more independent,” he told The Malaysian Insight.

Concerns over the prime minister’s powers in making judicial appointments surfaced again this year when the government in July announced the term extensions of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinuddin by appointing them as additional judges upon reaching the retirement age.

G25 described the current constitutional provisions which made prime minister the person who effectively decides on the appointments or promotions of judges, as “unsatisfactory”.

The group said the Yang di-Pertuan Agong was constitutionally obliged to act on the advice of the prime minister and this “gives rise to the perception that the judiciary is beholden to the executive.

“It is proposed (that) the prime minister plays no role at all in the appointment of judges.

“Instead of the prime minister, JAC should recommend the names to the Conference of Rulers (for their views) and, thereafter, to the Agong,” it said in its report on “Invigorating economic confidence in Malaysia”, released on Saturday in Kuala Lumpur.

Article 122B of the constitution provides that the appointments of the chief justice, president of the Court of Appeal, chief judges of the high courts, and other judges of the Federal Court, Court of Appeal and high courts shall be made by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers.

Changing constitutional provisions, however, would require the support of two-thirds of the Dewan Rakyat’s 222 MPs. The ruling Barisan Nasional has 132 lawmakers, PH 88 and two are independents. – December 12, 2017.