KUALA LUMPUR, Jan 13 — Politicians should not turn Malaysia into a "legal pariah" with their calls for political interference into court cases, the Sabah Law Society (SLS), which represents lawyers in Sabah, said today.
Its president Roger Chin noted recent news reports on "political figures" urging for the prime minister's interference in the judicial process, noting that "some have even gone as far as demanding for direct interference to the Federal Court concerning the case of former prime minister Datuk Seri Najib Razak" and for the current attorney-general and personnel within the chief justice's office to be changed.
Chin said it was "deeply disturbing" that such calls by political figures were being made in "blatant disregard of the principle of separation of powers and the entrenched constitutional democracy of Malaysia". He did not name these political figures.
"Political interference in any case — especially one of tremendous public interest — directly encroaches upon the functions and duties of the attorney-general and the court," he said, describing the unconstitutionality of such behaviour as leading to a "grievous erosion of justice" and attacking the integrity of the attorney-general and judiciary.
Chin said: "SLS condemns any act of politicians seeking for an intervention by the prime minister in an ongoing matter before the judiciary at all material points."
"It is pertinent to note that there have been instances in the past where politicians have been admonished, some even charged for such actions to interfere as these actions are considered abuse of power and a misfeasance of public duties," he added.
Chin said politicians are actually attacking the courts' independence when they call for interference in the courts.
"The acts of politicians in recent history openly discussing calls for interfering with the judiciary in legal actions erodes faith in the judiciary and are deeply damaging to the rule of law in Malaysia. This sort of behaviour is tantamount to an attack on the independence of the judiciary.
"Politicians should not be making scurrilous remarks which only serve to perpetuate misgivings and suspicion amongst the people towards our judiciary.
"The time has come for politicians to understand their roles in perpetuating and strengthening the rule of law including the doctrine of separation of powers instead of turning Malaysia into a legal pariah where rule of law is not sacrosanct whenever they utter unjustifiable statements," he said.
Chin said the judges' duties are to dispense justice according to the law and not according to "individuals or political parties".
Having noted that Malaysia values the separation of powers between the executive, legislative and judicial branches of government as they provide checks and balances against each other, Chin highlighted the importance of judges being able to independently exercise their powers "without any intrusion from individuals, entities or political parties".
Chin said SLS had on June 17, 2022 held its first-ever peaceful march named the "Walk for Justice" with over 100 Sabah lawyers from the Damai Community Hall to the Kota Kinabalu Courthouse in solidarity with the Malaysian Bar's Walk for Judicial Independence in support of the judiciary which was facing relentless attacks.
Chin made these remarks in his speech at the Opening of the Legal Year (OLY) 2023 of the High Court in Sabah and Sarawak which was held in Miri, Sarawak today. A written copy of the speech was made available to Malay Mail.
Remove PM's role in judges' appointments
Separately, Gurvir Singh Sandhu, the president of the Advocates Association of Sarawak (AAS) which was hosting the OLY 2023 event, highlighted the importance of judicial independence as it would benefit the public as they would know that they received a fair trial and fair hearing from judges insulated from any improper outside influence" and from judges bound only to give justice according to law.
Gurvir listed several amendments to the Judicial Appointments Commission (JAC) Act 2009 and the Federal Constitution which he urged the Malaysian government to look into, in order to remove obstacles to improve judicial independence in the country.
To maintain clear separation of powers between the legislative, judiciary and executive, the AAS urged for changes to the laws that give the prime minister a role in the process to select and appoint judges.
The four proposed amendments that AAS pushed for include the JAC Act's Section 5(1)(f) which provides the prime minister with the privilege of appointing four eminent persons to the nine-member JAC, and Section 27 of the same law which provides the prime minister with the privilege of requesting for additional names for him to consider when it comes to the nomination of candidates for the top four judges, Federal Court judges and the Court of Appeal judges. The AAS did not specify what these two provisions should be amended to instead.
The other two proposed changes are to the Federal Constitution's Article 122B "to remove the privilege of the prime minister in advising the Yang di-Pertuan Agong on appointment of judges to the Federal Court, Court of Appeal and High Court", and to "improve the composition" of the JAC upon feedback from stakeholders including the attorney-general and the respective Bar associations in Malaysia and with the JAC's composition to be reflective of Malaysian society.
A copy of Gurvir's speech was also made available to Malay Mail.
The SLS and AAS are counterparts in Sabah and Sarawak to the Malaysian Bar which is a professional body representing lawyers in Peninsular Malaysia and the federal territories.
Currently, the JAC Act's Section 5(1) states that the JAC is to have nine members, including Malaysia's four top-ranking judges, a Federal Court judge appointed by the prime minister, with the remaining four to be appointed by the prime minister — after consulting the Malaysian Bar, AAS, SLS, attorney-general and state attorney-general.
The JAC’s functions include selecting those who are qualified to be judges for the prime minister's consideration.
But after the JAC goes through the process of selecting suitable candidates for judges and submitting its report to the prime minister, the prime minister can request for two more names to be selected and recommended to him for his consideration when it comes to the top four judicial positions and for vacancies for judges at the Federal Court and Court of Appeal level, based on the existing JAC Act.
After accepting any of the recommended candidates, the prime minister then advises the Yang di-Pertuan Agong over their appointments to the positions.
The Institutional Reforms Committee (IRC) in 2018 had said it planned to recommend changes to the JAC’s composition and judge selection process, pointing out that the submission of names to the prime minister and his right to request more names in a way enables him to reject candidates.
In November last year in conjunction with his chairing of the 260th meeting of the Conference of Rulers, the Negri Sembilan Ruler proposed the removal of the prime minister’s role in appointing the five members of the JAC and to let the Malaysian Bar, AAS, SLS and parliamentary select committee made such appointments instead.
