of the Court of Appeal and 22 other judges, unless the Yang Di Pertuan Agong orders otherwise.A judge of a high court may sit as a judge of the Court of Appeal where the President considers that the interest of justice so requires, and the judge shall be nominated for the purpose (as occa- sion requires) by the President after consulting the chief judge of that high
court.Any person qualified for appointment as a judge of a high court may sit as a judge if designated for the purpose (as occasion requires) in accordance with Article 122B. Article 122B is the provisions gov- erning the appointment of judges of federal court, court of appeal and of the high court.
The chief justice of the federal
court, President of the Court of Appeal, chief judges of the high court and – subject to Article 122c – the other judges of the federal court, court of appeal and high court, shall be appointed by the Yang Di-Pertuan Agong, as acting on the advice of the Prime Minister, after consulting the conference of rulers. The Prime Minister has to con- sult the chief justice 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 also has to consult the chief judge of the high court, and, if the appointment is to the high court in Sabah and Sarawak, the Chief Minister of each of the states before tendering his advice as to the appointment under clause (1) of the chief judge of a high court. If the appointment is to the fed-
eral court, the Prime Minister has to consult the chief justice of the federal court before tendering his advice as to the appointment under clause (1) of a judge other than the chief jus- tice, President or a chief
judge.The same ruling applies if the appoint- ment is to the court of appeal. If read hastily, the provisions of
Article 122B may not raise any diffi- culties. However, it is known that the Prime Minister as the head of the executive should not get involved in the appointment of the members of the judiciary, another branch of the government whose tenure of office is supposed to be independent. The independence of the judici- ary is questionable if the appointment
or elevation of a judge is made upon the choice or the recommendation of the Prime
Minister.The rationaliza- tion of such a notion is that one has to please the executive to get the appointment or elevation as a judge. However, looking further at the pro- visions of Article 125(3)-(5), the Prime Minister is constitutionally entitled to play a major role in mak- ing decision for the removal or process for the removal of judges. The principle of the right to hire
and fire does not lie with the execu- tive, but with the high profile nature of the Prime Minister’s involvement in the process of appointment and removal of judges makes it very diffi- cult to deny that judges are, to a cer- tain extent, accountable to the execu- tive or at least to the Prime Minister.
Recommendations It would be pertinent to suggest that we should review this practice and devise a new one without departing completely from the normal practice. I would endeavour to make the fol- lowing suggestions: All recommendation for the appointment or elevation of judges shall be scrutinized by an independ- ent judges commission, and such scrutiny shall strictly be based on merit as to the suitability of each candidate based on qualification, knowledge of law, academic writing, record of judgments, past perform- ance (where applicable), tempera- ment, character, personality, traits, emotion, circle of friends, social and recreational activities and similar like
qualities.The Judges Commission must be completely satisfied that the candidate has satis- fied all criteria in fulfilling the office of a judge before submitting his or her name to the Yang Di Pertuan Agong for official appoint- ment.
Rules and procedures may be
devised to provide guidelines for the commission to follow. The Prime Minister or head of the administration may choose or recommend a candidate for appoint- ment of a judge or elevation of a judge to higher judicial office, but a process of confirmation of such can- didate is subject to an examination proceeding (or similar assessment process) to be conducted by the
318 The Parliamentarian 2008/Issue Four
Judges Commission, to ascertain the candidate suitability. The process of the examination or assessment proceeding shall be made in the presence of the candi- date unless the commission considers otherwise.
The commission process will also be on camera unlike the proceeding of the cabinet committee in the U.S. for the confirmation of the judge’s appointment. Remunerations, rights and privi- leges of judges shall be determined by the commission and any laws in respect thereof shall be moved by the parliamentary select committee in the House for approval. All rules of discipline and ethics for judges shall be determined by the commission subject to the approval of Parliament. Such Bill shall be tabled in Parliament by the committee for approval of both
Houses.The com- mittee is entitled to review and make suggestions for amendments similar to the procedure to review and amend ordinary Bills.
The commission shall comprise of the head of judiciary, attorney general, President of the Bar Council (or similar like body), an imminent academia with excellence legal background, retired senior judge and a prominent member of the Bar with a credible track record. The permanent Parliament Select Committee is entitled to review the list of proposed Members of the commission and make rec- ommendations before the list is to be submitted to the Yang Di Pertuan Agong for royal appointment. Judges shall not be removed
except through an impeachment proceeding in Parliament or the occurrence of a disqualifying reason entrenched in the
constitution.An impeachment proceeding in Parliament shall only be moved on a petition initiated by the Judges Commission through the permanent select committee of Parliament. The committee of Parliament
upon receipt of the petition shall consequently hold a meeting to objectively review the matters. Upon satisfaction of the seriousness of the breach, the committee of Parliament shall appoint a Member to move a motion in the House to deliberate it and make a decision.
Judges and Politicians
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