Give Anwar space to perform his constitutional duty

Free Malaysia Today

6 days ago

From Ibrahim M Ahmad
The recent controversy surrounding delays in the appointment of a new chief justice and Court of Appeal president has landed Prime Minister Anwar Ibrahim in some difficulty, with many accusing him of interfering with the affairs of the judiciary.
Former chief justice Tengku Maimun Tuan Mat retired on July 1, while ex-Court of Appeal president Abang Iskandar Abang Hashim followed suit one day later.
Both retirements were mandated by law, subject only to a maximum six-month extension at the discretion of the Yang di-Pertuan Agong, which was not exercised in their favour.
Fingers pointed immediately at Anwar, accusing him of flushing out the judiciary for political gain.
Last week, Chief Judge of Malaya Hasnah Hashim was appointed acting chief justice, and apex court judge Zabariah Yusof to the number two post.
Both judges had their tenure extended earlier this year and are only stop-gap appointments. Hasnah is set to retire on Nov 15 this year, and Zabariah even earlier, on Oct 10.
Meanwhile, Chief Judge of Sabah and Sarawak Abdul Rahman Sebli retires on July 24, having already had his tenure extended.
Two other senior Federal Court judges will also have to step down soon.
Nallini Pathmanathan will turn 66 on Aug 22 this year, and will vacate her office unless her tenure is extended, while Hanipah Farikullah, whose tenure was extended earlier this year, will leave the bench on Nov 22.
Of those who remain, Abu Bakar Jais turns 66 on June 27 next year, Lee Swee Seng (Nov 26, 2026), Rhodzariah Bujang (Nov 5, 2027), Vazeer Alam Mydin Meera (Jan 3, 2028), Nordin Hassan (July 13, 2028), and Ahmad Terrirudin Salleh (April 12, 2034).
Given Tengku Maimun and Abang Iskandar's retirement and the impending loss of five judges, it would appear that the prime minister has a lot to answer for.
Having said that, no one has expressed any disapproval of Hasnah's assumption of the top post, which occurred by operation of law, or her appointment of Zabariah as Court of Appeal president. Neither has Anwar interfered to block either of them from taking office.
According to reports, Hasnah has acted swiftly, calling for an immediate meeting of the Judicial Appointments Commission (JAC) last Friday.
Even that appeared to raise the ire of some, claiming it violated the notice of meeting provision in Section 13 of the JAC Act 2009, again with insinuations that the prime minister was behind it.
The outcome of that meeting has not been disclosed but obviously it would have involved the need to fill vacancies in all three superior courts.
Between Jan 1 last year and now, the king has appointed four judges to the Federal Court, 10 to the Court of Appeal, 19 to the High Court, and five judicial commissioners, according to JAC records.
As prescribed under Article 122B(1), all appointments were made on the advice of the prime minister.
There were no complaints at the time that the JAC was idle. Clearly, it performed its statutory duty of vetting the candidates and recommending their appointment. Neither did anyone accuse the prime minister of impropriety or interference.
Once again, the commission will have a lot to do this time round. After all, promotions to the apex court will result in vacancies in the Court of Appeal, which will have to be filled through promotions from the High Court, resulting in even more vacancies at the bottom tier.
The primary gripe of many appears to be that Anwar had apparently dismissed recommendations made by the JAC for appointments to the judiciary's top posts during Tengku Maimun's tenure.
Conspiracy theorists are also insinuating that Hasnah called for the meeting last week to 'revise' lists approved by the JAC under its previous chairmanship, purportedly on the instructions of the prime minister. Those who know Hasnah will attest she is incapable of that.
But my question is more basic: Should Anwar even take the JAC's recommendations for the judiciary's top two positions?
Article 122B(1) of the constitution states that all appointments to the top four positions in the judiciary and as judges of the superior courts are made by the king on the advice of the prime minister, and after consulting the Conference of Rulers.
Article 122B(2) states: 'Before tendering his advice as to the appointment under clause (1) of a judge other than the chief justice of the Federal Court, the prime minister shall consult the chief justice.'
In other words, the prime minister is not obliged to consult a sitting chief justice when considering who to appoint as successor.
If that is the case, why should he be obliged to take recommendations from a commission chaired by the chief justice?
Even if the sitting chief justice were to stand down, is it proper for the next in line, i.e. the Court of Appeal president or any other judge on the JAC, to helm the commission for the purpose of recommending the next chief justice? After all, they are all likely candidates for the office themselves.
Those who remember the 1988 tribunal convened to investigate then lord president Salleh Abas will recall that this was precisely the cry of all and sundry when it was chaired by Hamid Omar, his eventual successor.
Ultimately, although not established under the constitution, the JAC can recommend candidates to fill vacancies on the bench, but should not be recommending successors to the top four positions.
Such appointments are the prerogative of the king, acting on the advice of the prime minister, who has the people's mandate.
And, as controversial as it may sound, the people's mandate is just as important in the appointment of judges.
There is no greater example now than in the US, where three Donald Trump appointees have turned a liberal Supreme Court into one that leans heavily in favour of his Make America Great Again agenda.
For instance, one of the election promises Trump made during his first term was to overturn Roe v Wade (1973), a landmark ruling establishing a woman's right to abortion. His bench duly delivered on that promise in 2022, when he was out of office!
Trump has also chosen to appoint younger judges, in the expectation that they will dominate the bench for years to come.
But back to Anwar. Article 122B(2) says the prime minister must consult the chief justice in the appointment of the Court of Appeal president.
Given that the Court of Appeal president retired one day after the chief justice, that consultation would have been futile.
Yes, the prime minister could have acted earlier. Nobody knows his reasons for not doing so.
However, the fact that so many judges were set to leave the judiciary within a short space of time was not down to him. The situation was not engineered by him, it was simply unavoidable.
Calls for a royal commission of inquiry are premature, unfair and based entirely on conjecture. Opposition politicians are clearly pushing a political agenda in their attacks.
The prime minister must be given a free hand, and space, to identify the right candidate to lead the judiciary on a permanent basis. That is his constitutional duty.
But he must also get the right candidates for the top two posts before they are vacated.
With Hasnah at the helm, the public should withhold its judgement at least until November, when she steps down.
Ibrahim M Ahmad is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of FMT.