New govt must legislate judicial reform, says ex-judge

gopal-judicifialPETALING JAYA: Any government that obtains the two-thirds majority in the Dewan Rakyat after the 14th general election must introduce judicial reforms that include the independence of the judiciary, a retired judge said.

Gopal Sri Ram said Article 121 of the Federal Constitution must be amended as it stood before its amendment in 1988.

The former Federal Court judge said an amendment to Article 122(1A) should be made so that an additional judge could not hold the administrative positions of Chief Justice, Court of Appeal president, Chief Judge of Malaya and Chief Judge of Sabah and Sarawak.

“This is because, despite the provision being clear, it is open to abuse,” he told FMT.

Sri Ram was responding to a speech by PPBM president Muhyiddin Yassin that a constitutional amendment would be made to limit the prime minister’s powers in appointing the attorney-general, inspector-general of police, Malaysian Anti-Corruption of Commission (MACC) chief and Election Commission chairman should Pakatan Harapan form the federal government.

He said this when addressing about 5,000 people at PPBM’s first-anniversary celebration in Muar, Johor, on Saturday night.

Since 2008, no constitutional amendment has been made as the Barisan Nasional government failed to secure the traditional two-thirds majority in the lower house of Parliament.

Sri Ram said a third amendment should be made to remove the prime minister’s power to make any appointment of a judge to the superior courts.

“The Judicial Appointments Commission should be given constitutional status to recommend appointments directly to the Yang di-Pertuan Agong,” he said.

He said the commission members should be confined to the four administrative heads in the judiciary and three retired judges who have previously held high judicial office.

“Appointments and promotions should be based on merit alone.

“The constitution should expressly state this to prevent friendship from prevailing over scholarship,” he added.

On April 20, the Federal Court, in a landmark ruling, said the judicial power of the court resided in the judiciary and no other, as was made explicit in Article 121 (1)

Justice Zainun Ali, who delivered the judgment of the five-man bench, said this was because the judiciary was entrusted with keeping every organ and institution of the state within its legal boundary.

She said the courts, which formed the third branch of the government, had a duty “to ensure there was a check and balance mechanism in the system, including the crucial duty to dispense justice according to the law”.

Zainun said the 1988 amendment resulted in the judiciary being effectively suborned to Parliament, meaning the courts were dictated by the power given by the federal legislature.

She said it must be noted that the words “judicial power” were deleted from the text of Article 121 (1) which came into effect on June 10, 1988.

Two months ago, Article 122 (1A) also became the subject of dispute when incumbent Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin were appointed additional judges to remain in their administrative posts.

At least two retired judges and groups representing lawyers in the peninsula, Sabah and Sarawak are of the opinion that only judges who have yet to reach the mandatory age of 66 years plus six months can hold administrative posts.

Lawyers have now given the mandate to the Malaysian Bar, Sarawak Advocates Association and Sabah Law Society to challenge the appointments of Raus and Zulkefli.