Call to have future judges vetted by PSC lauded by legal fraternity
Thursday, 11 October 2018

The Star
by Royce Tan

PETALING JAYA: Senior members of the legal fraternity welcome the call by the Prime Minister to have future candidates for judges to be vet by a Parliamentary Select Committee first.

Senior lawyer Datuk Roger Tan said if introduced, it would be reinforcing the principle of separation of powers so that each branch could be an effective check and balance on the other.

“If so, we are moving towards the American style of appointing their Supreme Court judges by holding Congressional hearings. As one can see from the appointment of Brett Kavanaugh, the whole process can become very bitter.

“Notwithstanding the serious allegations against him, he still ended up being elected by the Republicans who control the Senate. So, it is not bipartisan at all.

“US Supreme Court judges hold office till death. If this new way of appointment is adopted, then the Federal Constitution has to be amended,” he said, adding that in that respect, the retirement ages for the current batches of judges should not be extended to 70 years as they need not face such parliamentary hearings.

Tan is also of the opinion that the Judicial Appointments Commission (JAC) will most likely be disbanded.

“Currently, the Constitution only empowers the Prime Minister to advise the Yang di-Pertuan Agong. The JAC is not even mentioned in the Constitution.

“The JAC can recommend to the Prime Minister but he can always not listen to them and bypass them if he wishes because of Article 122B,” he said.

He said such a move will require amendments to the Federal Constitution, especially Article 122B, which states that judicial appointments shall be made by the Yang di-Pertuan Agong, on the advice of the Prime Minister, after consulting the Conference of Rulers.

JAC member and retired Court of Appeal judge Datuk Mah Weng Kwai said the module or the format of the appointment proposed by Dr Mahathir had to be known first.

He added that while candidates would be screened by a Parliament Select Committee comprising MPs, it would still be necessary to have input from the Bar Council and the judiciary.

“Importantly, we need to know what exactly the module is and the process that will take place,” said Mah, who is a Human Rights Commission of Malaysia commissioner and a former chairman of the Bar Council.

Bar Council Constitutional Law Committee co-chairman Andrew Khoo said Dr Mahathir’s statement raised questions about the procedures by which the candidates would be nominated.

“The actual mechanisms need to be worked out to ensure little duplication of effort as well as compliance with the provisions of the Constitution,” said Khoo.

Lawyers for Liberty adviser N. Surendran said it was of utmost importance that the appointment must be free of government influence no matter what process was used.