Transparent Process and Reforms in the Appointment and Promotion of Judges

By:

G25 Malaysia

Affiliations:

G25 Malaysia

Policy Code:

3c Judiciary Reform

Problem Statement:

Under the Federal Constitution, Judges nominated by the Judicial Appointment Commission (JAC) are appointed by His Majesty the Yang Di-Pertuan Agong on the advice of the Prime Minister after consultation with the Conference of Rulers (Art. 122B). The Prime Minister is not obliged to give a reason if he were to reject a nomination by the JAC. As His Majesty is constitutionally obliged to act on the advice of the Prime Minister, the person who effectively decides on the appointments or promotions of Judges is the Prime Minister.

Value(s) and Belief(s):

This system of appointment is unsatisfactory because it gives rise to the perception that the Judiciary is beholden to the Executive. This stems from the fact that the Prime Minister is the head of the Executive Branch and exerts substantial influence on the Legislature. It is clear that there are times when Judges have to make unfavourable decisions involving the Executive or the Legislature.

Proposal of Solution:

It is proposed that the Prime Minister plays no role at all in the appointment of judges. The JAC (instead of the Prime Minister) recommends the names to the Conference of Rules (for their views) and thereafter to the Agong. A constitutional amendment is required.

Additional Information:

Translation

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