Press Statement by Karpal Singh in Kuala Lumpur on Friday, 12th December 2008:

PM not the guardian of independence of the Judiciary   

The Judicial Appointment Commission Bill which comes up for debate next week does not have in its essence and spirit the assurance of independence of the Judiciary. Section 2 of the Bill provides for the Prime Minister to uphold the continued independence of the Judiciary. What is required, as the bedrock of independence of the Judiciary, is a constitutional guarantee.

The Prime Minister is the head of the Executive. Having regard to the doctrine of separation of powers, it is not for the Prime Minister to take upon himself the prerogative and privilege of being the guardian of the independence of the Judiciary. He has no right to lay claim to what only the supreme law of the land, the Federal Constitution, can house in its sacred provisions.

However, it is a matter of utmost regret that the Federal Court on 23rd November, 2007 in a majority judgment (comprising Ahmad Fairuz, chief Justice, President of the court of Appeal, Abdul Hamid Mohamed and Federal judges, Alauddin Mohd Sheriff and Tan Sri Zaki Tun Azmi) with Richard Malanjum, CJ (Sabah/ Sarawak) dissenting in the case of the juvenile charged with the murder of the daughter of his tuition teacher held that the doctrine of separation of powers was not a provision of the Constitution overruling the illuminating and authoritative judgment of the Court of Appeal handed down by Gopal Sri Ram who rightly held that the doctrine of separation of powers was an integral part of the Constitution.

In fact, the judicial pronouncement by the Federal Court contradicts the statements by the Executive, in particular, through the Prime Minister, Datuk Seri Abdullah Ahmad Badawi and legal experts, that the country operates on the doctrine of separation of powers. There is clearly, therefore, a necessity to amend the Constitution to specifically provide for the doctrine of separation of powers to be entrenched in the Constitution as the decision of the Federal Court cannot withstand close scrutiny. There is, no doubt, that the framers of the Constitution had in mind separation of powers as is apparent from the scheme of the Constitution.

The Judicial Appointments Commission is, clearly, bereft of any bite, with regard to the selection of judges and is as impotent as Suhakam.

The report of the Judicial Appointments Commission is merely a recommendation. It does not bind the Prime Minister. Section 26 of the Bill merely provides for a position where the Prime Minister, having accepted any of the persons recommended for appointment by the Commission, to proceed to tender his advice in accordance of Article 122B of the Constitution to the King who then confirms the appointment after consulting the Conference of Rulers.

Even the advice of the Conference of Rulers has been held not to be binding on the Executive. The Court of Appeal, through a ruling made by the then President of Court of Appeal, Lamin Mohd Yunus, held on 2nd March, 2000 as follows,

“In the context of Article 122B (1) where the Prime Minister has advised that a person be appointed as judge and if the Conference of Rulers does not agree or withholds its views or delays in giving its advice with or without reasons, legally the Prime Minister can insist that the appointment be proceeded with. Likewise, in the case of a request from the Conference of Rulers, revocation of an appointment, or advice from it to revoke an appointment already made, the Prime Minister need not respond.”

This ruling certainly smacks of judicial arrogance and is an affront to the Rulers and requires immediate overruling.

Clearly, it is the Prime Minister who has the ultimate prerogative on the appointment of judges as the law now stands and will also stand with the Judicial Appointments Commissions Bill becoming an Act.

To have a genuinely independent judiciary, it is my view that the Judicial Appointments Commission should be entrenched in the Constitution by way of an amendment with its recommendations be made to bind the Executive. Likewise, the Constitution should also be amended to provide for the advice of the Conference of Rulers on the appointment of judges or revocation thereof to be made to bind the Government.

Of course, the Barisan Nasional lacks the necessary two-thirds majority required to amend the Constitution. It is short of eight to make up that majority. However, in the public interest, the DAP is prepared to provide for that lack of the two-thirds majority by supporting the amendments.

The Judicial Appointments Commission Bill does not provide for any checks and balances against the Executive when it comes to appointment of judges. It can appoint persons of its choice with impunity. This, clearly, happened in the recent appointment of Tan Sri Zaki Tun Azmi as Chief Justice despite his close affiliation with UMNO having being its legal advisor and deputy chairman of its disciplinary committee before his appointment and despite strong opposition from various quarters. This appointment is, clearly, a political one. Political considerations can have no place in judicial appointments for the doctrine of separation of powers to be meaningful.

I call upon the Government to defer the Judicial Appointments Commission Bill pending the constitutional amendments I have adverted to. This Bill should not be rushed through Parliament just to satisfy the prime Minister’s ego before he steps down in March next year.

* Karpal Singh, DAP National Chairman & MP for Bukit Gelugor