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
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