Criticising what he calls the “prime minister-centric” appointment process of superior court judges, former Court of Appeal judge Hishamudin Yunus said “principled structural reform” is necessary to restore public trust in the judiciary instead of “mere incremental adjustment”.
Speaking at a forum on judicial independence here this evening, he claimed that while the Judicial Appointments Commission (JAC) was established in 2009, its framework has not guaranteed actual judicial independence.
Hishamudin said there is no legal constraint on how many times the prime minister may request additional names for his consideration if he is dissatisfied with the JAC’s recommended judicial appointments, as provided for under Section 27 of the Judicial Appointments Commission Act 2009.
Section 27 specifies that the prime minister may, after receiving the commission’s recommended names, “request for two more names to be selected and recommended for his consideration”.
Hishamudin noted that the prime minister is also not obliged to accept the commission’s recommendations, adding this reduced the commission’s role to that of an advisory body rather than an independent safeguard.
“And may I say – I was also a victim of the prime minister’s veto. In 2013, I was recommended to be elevated to the Federal Court.
“The name went to the prime minister. The chief justice at the time and the Court of Appeal president did not push hard when the prime minister turned down the proposal,” said Hishamudin, who retired in 2015.
Currently the chairman of the Human Rights Commission of Malaysia, Hishamudin said the JAC’s membership composition might also need to be reviewed as it was slanted towards the executive.
Hishamudin said the prime minister is responsible for the appointment of a Federal Court judge and four other eminent persons to the JAC, and their appointments can be revoked “at any time”.
The chief justice, Court of Appeal president, and the chief judges of Malaya, Sabah and Sarawak are members of the commission by virtue of their positions.
Hishamudin said the prime minister should be completely excluded from the appointments of judges and JAC members to avoid executive interference.
“The JAC’s composition must be rebalanced to ensure diversity, independence and broader representation,” he added.