PETALING JAYA: Judges on probation should be disallowed from hearing cases involving the government and ministers as the prime minister has a hand in their appointments, a former Malaysian Bar president said.
Param Cumaraswamy, a former United Nations special rapporteur on the independence of judges and lawyers, said Norway was an example of a country where judges on training were prohibited from presiding over cases that involved the authorities.
“The Court of Appeal in that country had ruled that temporary judges should not be hearing such cases until there have been confirmed,” Param told FMT.
In Malaysia, such judges, known as judicial commissioners (JCs), would be elevated to become High Court judges if they meet the Judicial Appointments Commission’s (JAC) criteria, which include acceptable quality of judgments.
Under Article 122B (1) of the Federal Constitution, they are appointed by the Yang di- Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers.
Param said JCs did not enjoy the security of tenure, unlike a confirmed judge who retired at 66 and could only be removed by way of a tribunal.
“JCs’ independence will remain suspect if they are allowed to hear cases that involve the government and government officials because they would want to be confirmed,” he said.
Param was named as this year’s recipient of the Malaysian Bar Lifetime Achievement Award.
Initiated in 2012, it honours current and former Bar members who have demonstrated dedication and exemplary service, in addition to making outstanding and significant contributions to the legal profession.
He said there were enough criminal and civil cases to be distributed for JCs to carry out their judicial functions.
Currently, there are 34 JCs in the High Courts of Malaya as well as Sabah and Sarawak. Some are yet to be confirmed although they were appointed in 2013.
Seven more JCs are expected to be appointed on March 30.
In the past, two retired judges, Gopal Sri Ram and Mohd Hishamudin Mohd Yunus, had called for the appointments of JCs to be stopped, saying that the original objective was no longer being followed.
Sri Ram, a former Federal Court judge, said many had forgotten that JCs were originally appointed to dispose of a huge number of cases four decades back.
He said an amendment to the constitution in 1976 vested power in the then Lord President to appoint JCs to clear the backlog.
Sri Ram said the system was stopped but the appointment of JCs on a trial basis recommenced in the early 1990s with the view to elevate them as High Court judges.
Hishamudin, a former Court of Appeal judge, said since JCs did not enjoy security of tenure, they might not be perceived as being fully independent.