The Government has committed to a review of the Judicial Appointments Commission Act, following calls to remove the Prime Minister’s role in judicial appointments. The timing is crucial. In 2025, three-quarters of the 12-member Federal Court—including the four highest posts in the judiciary—will become vacant this year, as Malaysia’s top judges will reach the mandatory retirement age of 66. On this episode of #ConsiderThis Melisa Idris @MelisaMelina_Idris speaks with Datuk Seri Mohd Hishamudin Md Yunus, Chairperson of SUHAKAM, who retired Court of Appeal judge in 2015 after serving 23 years on the bench, and lawyer Christopher Leong, who served as the 30th President of Malaysian Bar, from 2013 to 2015.
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00:00hello and good evening i'm melissa idris welcome to consider this this is the show where we want
00:15you to consider and then reconsider what you know of the news of the day the government has
00:20committed to review to a review of the judicial appointments commission act following calls to
00:26remove the prime minister's role in judicial appointments now the move has reignited
00:31long-standing debates about how malaysia selects its judges the balance of power between the
00:38executive and the judiciary and what judicial independence should truly look like the timing
00:45of this is crucial because in 2025 three quarters of the 12 member federal court including the four
00:54highest posts in the judiciary will become vacant this year as malaysia's top judges will reach the
01:01mandatory retirement age of 66 so joining me now to help us think through this um this important issue
01:07is datuk sri muhammad hishamuddin muhammad yunus who is the chairperson of suhakam he is a retired judge
01:14of the court of appeal having served 23 years on the bench he was also a former member of the
01:22judicial appointments commission nato sri welcome to the show thank you so much for being here
01:27uh for joining me today i would like to ask you in your opinion what you think would make a more
01:34transparent and accountable appointments process what would that look like in practice
01:41good morning miss melissa and thank you for inviting me to this program
01:48to begin with i applaud the prime minister on his promise for a review of the system of appointment
01:56of judges although we have yet to see what the reforms would be like nevertheless i do hope the review
02:04will bring about positive reforms that was enhancing the independence of the judiciary judiciary
02:12in my opinion a more transparent and accountable process must have the following eight features
02:22first feature any member of the public who aspires to be a judge and is qualified to be a judge should
02:31be able to apply to be one in other words there must be a press a process of open competition
02:39now let me make known of this fact before 2009 that's to say before the setting up of the jac
02:49one cannot apply to be a judge one has to wait to be appointed to be a judge for example in my case
03:00i had to wait to be invited to be a judge and i was invited to be a judge in 1992
03:07but now with the establishment of the jac anyone who qualifies can apply to be a judge
03:17the second feature is the appointing authority must be an independent judicial appointments committee which
03:27let us call for the purpose of this interview the code the jac for short
03:34the appointing authority cannot be the executive for example it cannot be the prime minister
03:43under the present system effectively it is the prime minister who makes the appointment the prime minister
03:50advises the agong the young plan agong and the agong is cautionally obliged to act on the advice of the pm
03:57this practice in my opinion must cease if we really want an accountable and transparent system
04:07the third feature is for the members of the jac to be truly independent they cannot be appointed by the
04:20executive for example they cannot be appointed by the prime minister in other words the current practice
04:28where members of the jac are appointed by the prime minister must also cease instead they should be
04:35appointed by special independent committee the fourth feature is a certain members in the gac should
04:44represent essential interests like serving judges ex-judges representative of the attorney general
04:51representative of the nation bar representative of the sabah bar and representative of the sarawak bar
04:59the fifth feature is the majority of the membership of this jac should come from members of the public they should be able to apply to the special
05:13independent committee to be appointed as members of the jac the application must be by way of open competition
05:23the sixth feature is there should be a good mix in the membership of the jac such that there is diversity
05:33in the membership to reflect the fact that malaysia is multi-racial and multi-religious a respectable
05:41percentage should be women and respectable percentage should be lay persons the seventh feature is it should be
05:52the function of the jac to submit the names of the successful candidates directly to the young diputuan agong
06:00after consultation with the conference of rulers the young diputuan agong as a matter of formality
06:07makes the appointment lastly and is the eighth feature the whole process in the whole process
06:15there should be no involvement of the prime minister but if in the alternative we still want to involve
06:23the prime minister in the process out of deference to the office then such involvement should be
06:29should only be ceremonial and intermediary in nature that's my answer to the first all right thank
06:38you dr i'm curious to know so out of the um eight that you've laid out i'm i want to know about the
06:45current process and what works within it what doesn't quite so when we think about how the current process
06:53affects meritocracy um what what is the scenario do the do the best legal minds always rise to the top
07:03in my opinion the current process does not promote meritocracy and under the current process
07:12the best legal minds may not rise to the top
07:15but having said that i must post here to say that there could be exceptions for example the current
07:24chief justice red honorable to come my mom although appointed under the current process is one of the
07:33best chief justice this country ever has and i'm proud to say that i was a member of the 10 jac
07:44who nominated her her name to the then prime minister to mahadi she is the first chief justice to be
07:53nominated by the jac now back to the issue of meritocracy the current process does not promote
08:01meritocracy because of the flaws in the system i'm able to identify five flaws flaw number one
08:09there's a flaw as to the manner of appointment of judges where the prime minister plays an important
08:17role when he should not the pm should be the appointing authority should not be the appointing authority
08:28as he is the head of the executive arm of the government if at all you were to give a role to the pm it should
08:35only be an intermediary and ceremonial role that's to say merely to forward the names of successful
08:41candidates to the young dibutuan ago floor number two there's a flaw in the manner members of the jac are
08:51appointed under the current the current system they are appointed by the prime minister this should not
08:59be the case the prime minister is the head of the executive he should not be involved in the appointments
09:07there is a risk that appointment by dpm could be colored by political consideration
09:16floor number three there's a flaw in that members of the jac does not enjoy a security of tenure members of the jac are
09:26only appointed for two years and they could be removed by the pm at any time without giving any reason hence
09:37there is no secretive of security of tenure for jac members floor number four under the current system
09:45there's a flaw in the composition of the jac the current membership of the jac is only nine and to compound the
09:55problem the jac is cash heavy where five out of the nine members are serving judges these five are the
10:06chief justice the president of the court of appeal the chief judge malaya and the chief judge of sabah
10:13and sarawak who are all ex-official members the fifth judge is a federal court judge appointed by the prime
10:20minister the non-judges the non-judges are the remaining four members known under the act as the four
10:27eminent persons therefore there is no diversity in the membership of the jac and the last floor floor
10:35number five under the current system there's a flaw in the powers of the jac under the jac under the act the
10:45jac does not do the appointment it is the prime minister who does the appointment the pm is the
10:54appointing authority the role of the jac is only to nominate names to the prime minister who could reject
11:04the names nominated and could ask for more names and this power of the pm to reject and to ask for more
11:13names could be exercised indefinitely indefinitely all these flaws must be rectified if you want to
11:22achieve meritocracy thank you that's three could i get you to elaborate on some of the the principles
11:30that should ideally guide our judicial appointments you talked a little bit about the need for diversity
11:37the need for um independence competence you talked about it being not to judge heavy and the need for
11:44lay persons in there help me think that through why do we need to have this mix of people on the
11:51judicial appointments commission and how do we balance all the the different um principles that should guide it
11:57in my opinion the way forward to enhance the independence of the judiciary is to reform the present system
12:08meaning to revamp to uphold the current system now in overhauling the current principles what should
12:17the principle should guide us okay right first the provisions of the judicial appointments commission act
12:25the jac act must be elevated to the status of constitutional provisions in other words they should be part of the federal
12:34constitutions this is because the important provisions of law relating to the appointment of judges are already
12:42there in the federal constitution hence we cannot have side by side two sets of laws relating to the same subject matter
12:53that is relating to the appointment of judges where one set of laws is found in the federal constitution
13:01and another set of laws is found in the jac act this is an unsatisfactory situation an act of parliament
13:12is of a lower lower status as compared to the federal constitution there will be bound to be inconsistencies
13:21and problems of interpretation in fact currently a member of the public has already challenged in court
13:31on the continuity of the jac act
13:34second the rule of the prime minister in the process of appointment of judges must be removed there is
13:44nothing personal in this suggestion it is just a question of principle but if we at all we still want to
13:53involve the pm in the process out of deference of the office it should be only ceremonial as an intermediary
14:03third the rule of the prime minister in the appointment of members of the jac must also be removed
14:12again there's nothing personal in this suggestion it's just a question of principle members of the jac
14:20ajac should be appointed by a special independent committee and members of the public can apply to be members of the
14:30jac through open competition as i've mentioned earlier but again here we can still involve the pm in the
14:38appointments of members of the jac provided it should be only ceremonial that to say just to formally announce
14:47the names of the names of jac members as selected by the special independent committee
14:56the jac should not be judged heavy in this membership as it is now but must have a larger membership than it is
15:05now say anything around 15 to 18 members with diversity in the membership to cater for various interests as i've
15:15mentioned earlier fifth anyone who desires to be a judge and is qualified to be a judge can apply to be one
15:27and he makes his or her application to the jac on an open competition basis six the jac must evaluate the
15:39applicants including interviewing them based on essential criteria such as integrity legal knowledge
15:47experience judicial temperament etc and the evolution and selection must be strictly on merits seven it is
16:02the jac who should be making the appointments by submitting the names of successful candidates to the young
16:08ton agong after consulting the conference of rulers or alternatively if you still want to involve the prime
16:15minister in the process the names of the successful candidates would be submitted to the pm who should
16:23not reject the jac's choice of candidates but should as a matter of course of the consultation with the
16:31conference of rulers submit the names to young ton agong for the formal appointment in order to comply with
16:41the above principles we need to repeal the jac act and we need to amend the federal constitution thank you
16:49okay um that's three when you talked about the having you know even lay people can cut can apply to join a
16:58jac that is the vision help us think through what that means how would public participation or even
17:05parliamentary scrutiny how might that or might that not strengthen the legitimacy of judicial appointments
17:17with respect i am not in favor of getting parliament involved in the judicial appointments my reasons are
17:24this first parliament consists of politicians hence i fear that there's a risk of the appointment process
17:35getting getting getting politicized second our parliament as an arm of government
17:44is not fully independent but is subject to some control by the executive therefore getting to be involved
17:54getting parliament to be involved is almost the same as getting the executive to be involved in the
18:01usual appointments process however i am supportive of public participation in the appointment process
18:12and i have covered this aspect earlier but i shall repeat briefly first any member of the public should be
18:20able to apply to be a judge through a process of open competition provided he or she is qualified secondly any
18:31member of the public should be able to apply to a special independent committee to be a member of the jac
18:40again here through open competition thank you but uh that's true why why is it important that the public that
18:49this would be open to the public uh the public may not have the same knowledge as someone steeped in the judiciary
18:57we need members of the public to participate we cannot have uh just a very a very narrow membership for
19:08example it cannot be just heavy otherwise the appointment could be looking from a narrow perspective yeah okay we must
19:19look at it in a broader perspective how does the lay person perceive justice right how does the lay person
19:33perceive a truly independent judge and i must tell that in the uk in the uk the chairman of the jac
19:42society is a lay person oh okay so on that note then dato street what is the vision what is your vision
19:53for a judiciary that commands the full confidence of the malaysian public paint a picture for us
20:02my vision for a judiciary that commands the full confidence of the malaysian public
20:08is a judiciary comprising men or women of integrity of courage learned in the law and with appropriate
20:20judicial temperament it is a fearless incorruptible judiciary free from external influence men by judges of great
20:35learning and true to their oath of office now i just want to add this we can have the best constitutional
20:46structure on the independence of judiciary however and this is crucial part for us to appreciate such structure
20:57by itself does not guarantee that we will have a truly independent judiciary ultimately the level of judicial
21:09independence will depend on the judges themselves our judges must have the courage honesty and integrity to
21:21uphold the independence of the judiciary thank you dato sri thank you so much for speaking with me
21:28that was dato sri mohammad hishamudia mama inos chairperson of suhaqam and we're going to take a
21:34quick break here on consider this we'll be back with more stay tuned
21:50hi welcome back to consider this i'm melissa idris let's continue our discussion about strengthening
22:04the judicial appointments process this after the government recently committed to a review of the
22:11judicial appointments commission act following calls to remove the prime minister's role in judicial
22:17appointments joining me now to discuss his father is lawyer christopher christopher leong he were he
22:23served as the 30th president of the malaysia bar from 2013 to 2015 christopher thank you for joining me on
22:30the show today you were among the signatories of a joint statement um which sounded the alarm over
22:38concerns of interference in the judicial appointments process i'm very curious about that chris what prompted
22:44this collective call to action and what in your view is at stake here at the moment well first of all
22:53thank you very much to you and astra awani for inviting me for this session uh yes uh you know a few past
23:00presidents got together and issued actually two statements uh on the topic namely a judicial independence
23:07i think the first was sometime in january and then uh the second one recently on the 16th of april
23:14what prompted us i think what prompted us was because of the public discourse around the subject
23:20you know there were a lot of conflicting uh statements uh uh and views made in the public
23:28uh we wanted to uh first of all uh clear the confusion so the first confusion and this is very important
23:36because it is a misconstruction uh and it is not correct to say that the current chief justice tun uh
23:43tungku maimun appointment as a chief justice of malaysia had not complied with the jac act or was not in
23:51compliance with process that is completely uh uh incorrect uh her appointment followed the jac act the
24:00provisions in the act as well as she went through the jac and this importantly is just not what i say this was
24:07found by i think the special task force uh that was set up by the government you know to look into the
24:12former attorney general's memoirs uh i think it was uh what tansri uh tommy thomas's book
24:21uh and the special task force uh found that uh tun tukumai mun's uh nomination and recommendation for
24:30appointment as chief justice of malaysia did go through uh the jac and was in compliance with the
24:36jac act so you know we issued the statement i think following on from the chief justice's
24:41uh speeches uh uh speeches one uh earlier this year at the opening of the legal year for malaysia
24:48then lately uh her speech uh at the 24th commonwealth uh law conference uh in malta and we issued the
24:57statement because it it appeared to us that there was a lot of uh confusion misunderstanding or misinformation
25:06concerning uh judicial independence and what it means and what is needed you know uh some people uh
25:15think that judicial independence is the same thing as executive performance or parliamentary or
25:22legislative function it is not the judiciary stands uniquely separate although it is part of the three
25:30arms of the government under the constitution it stands apart from the other two it is not elected
25:36so a lot of people miss talk about accountability of judges you know judges elect recommending themselves
25:45and then insulating themselves from accountability and therefore we will have judicial independence
25:52equating to judicial uh hegemony okay chris if i may jump in here i want to cite your earlier joint
26:02statement the one in january in which you and the eight other former malaysian bar presidents express
26:08concern over opaque practices and other potential executive interference in judicial appointments and that's
26:14what i wanted to ask you about can you elaborate what you meant by that what are the specific weaknesses
26:21within the current appointment system that you believe leave it vulnerable well the weaknesses thus far
26:28first of all you know the uh the judicial appointments commission act 2009 uh was a step in the right
26:36direction in fact it was uh tabled by the late uh uh dun badawi's uh tenure as prime minister
26:45and that was a step forward uh step in the right direction but there was there are still weaknesses in the act
26:51the present government has promised pre-entering government and now in government that it will
26:58continue with further reforms to strengthen the independence of the judiciary the key weakness that i see
27:07uh in the current uh in the current uh structure is that there is too much power in the hands of one person
27:15namely in the office of the prime minister irrespective of who that person occup that is occupying that office
27:23uh because the power under the constitution uh rests with the prime minister of the day
27:29uh and uh and again it is not what i'm saying uh it is what uh the commission of inquiry i think this was in 2007
27:40ended in 2009 with a recommendation by the commission of inquiry to the young titan agong
27:46chaired by uh mahadif shankar uh former judge of the court of appeal and they said they said there was too much power
27:55uh concentrated in the hands of one person in respect of appointment of judges uh so we have actually two
28:04aspects in this appointment uh power one is the prime minister appoints the members of the jac five out of
28:11nine four are ex officio the office of the judiciary chief justice president of court appeal chief judge of
28:18malaya chief judge of sabah sarawak aside from these four the other five members are appointed by the
28:24prime minister so the majority on the jac are appointed by the prime minister secondly then thereafter the
28:32when the jac undertakes its work in uh interviewing vetting finding the correct candidates and they are
28:38the best place to do so uh because they have the experience with the judges input
28:45they then recommend to uh the prime minister via the chief justice president of court appeal chief
28:55judge of malaya or chief judge of sabah sarawak as the case may be pursuant to the federal constitution
29:01and the prime minister is not obliged to accept that recommendation the prime minister can actually say
29:08no you know i would like other names to be put forward to me and then the prime minister thereafter when he is
29:14satisfied he or she is satisfied advises the young tibetuan agong for appointment after
29:21consultation with the conference of rulers and then as we know under the federal constitution whenever
29:27it provides that whenever the young tibetuan agong is to act upon the prime minister's advice
29:32the young tibetuan agong is constitutionally obliged to accept that advice so effectively the prime minister
29:40is the sole gateway in terms of appointing members majority members on the judicial appointments commission
29:47and then the sole gateway in terms of the actual candidate that's uh eventually appointed right so in your
29:55view how do we strengthen that process the calls to remove the prime minister's role in um in the judicial
30:03appointments process would that how how do you see that strengthening the process and what would the
30:09process look like a good transparent and accountable process look like to you yeah so i think first
30:15off uh the bad there should be something that should ought to be clarified and this is one reason why
30:20we issued a statement on the 16th the public discourse thus far was only focusing on one aspect of
30:28potential reforms and that aspect concerns solely the part where recommendations are made by the jc to prime
30:35minister whereas any reforms to achieve a balanced end should look at it as a whole holistically that would involve
30:46how the jc is composed who appoints and the diversity of the membership right so one proposal is for a
30:58parliamentary select committee uh to recommend appointments to the young deptuan argong for membership to the judicial
31:11appointments commission so legislature comes into play and as we all know parliamentary select committees
31:19membership are taken from the members of parliament so it will comprise both of the government backbenchers
31:27as well as opposition mps so in that way you also therefore have uh government side input so to speak
31:36uh thereafter there's another suggestion of course uh and that is for the judicial appointments commission
31:45members themselves to recommend uh to recommend uh their successes uh to the young deptuan argong none of this
31:54proposals i think are set in stone it is still in the process of as you say looking for a balanced uh
32:04structure uh that achieves that end and uh of uh the end being the independence of the judiciary
32:10and then the other major uh area that we ought to look at would be thereafter when the jac is composed
32:20and mixed recommendations as to uh candidates for judicial appointments and this is to the superior
32:26courts namely the high court court of appeal federal court and there are two types of appointments one would
32:32be uh as judges and the other one would be as office bearers namely who is appointed to the position of chief
32:39justice and so forth right one proposal to look at uh would be for the jac to make a recommendation uh
32:51directly to the young young diptuan argong and for the king's appointment after consultation with the
32:59the conference of rulers so that aspect of uh the process should always remain intact uh of course
33:06with regards to candidates that pertain to sabah and sarawak there is the additional uh there should be the
33:13additional requirement to be maintained that there's consultation with the chief ministers of sabah and sarawak
33:19with regards to candidates that are uh for example for the high court of sabah and sarawak
33:26uh that's one proposal uh the other proposal uh uh would would be for let me let me see my notes there's an
33:36alternative uh proposal and that is to maintain the role of the prime minister so the first proposal is
33:45actually to exclude the role of the prime minister uh this an alternative possibly could be to maintain the
33:54role of the prime minister uh but damper uh his uh his say in the sense that the jac would make a
34:03recommendation one name to the prime minister the prime minister may say oh could you please give me
34:10another name for my consideration and then in the interest of transparency uh with regard to the jac the
34:18prime minister should state his reasons in writing to the jac so the jac knows why have their candidate
34:26after going through a process of interviews and and selection um been asked to reconsider i see so it's
34:34not a blanket veto yes or no i understand okay if the jac recommends and the next candidate or in their view
34:43that this is the best candidate the first candidate is still the best candidate the prime minister should
34:50then be bound to advise the king so that's another uh uh proposal well interesting considerations you've
34:58given us today to think about now i appreciate you for laying it out for us thank you christopher that was
35:04christopher leong from former president of the malaysian bar wrapping up this episode of consider this
35:09i'm melissa idris signing off for the evening thank you so much for watching and good night