Who should appoint judges?

WHO should have the final say in the appointment of judges and their further elevation?
A live issue ever since former premier Datuk Seri Najib Abdul Razak extended the term of former chief justice Tun Raus Shariff (and the presidency of the Court of Appeal) through a convoluted unconstitutional process.
This "backdoor" appointment, as Pakatan Harapan's (PH) manifesto described, was remedied when the new government dislodged the usurpers from their posts and revamped the Judicial Appointments Commission (JAC) by replacing its members with others.
The appointment of judges is governed by Article 122B(1) of the Constitution by which judges and all administrative position holders must be appointed by the King, acting on the advice of the prime minister, after consulting the Conference of Rulers.
In effect it is the prime minister who has the final say as the King must act on his advice and the Conference cannot veto any recommendation.
The JAC only makes non-binding recommendations. Practically, the chief justice's recommendations always seemed to prevail. All this worked well under conventions that were scrupulously observed, albeit informally.
It is well known by lawyers of yester-years that in the early days when the judiciary was led by the likes of Tun Azmi Mohamed, Tun Mohamed Suffian Mohamed Hashim and Raja Azlan Shah, appointments were vetted informally including consultations with eminent senior lawyers and the Bar Council.
All this changed drastically under the leadership of Tun Abdul Hamid Mohamad. Thereafter, except for some transient moments, by and large it was a rapid descent down a slippery slope, climaxing in Najib's appointment of Raus and Tan Sri Zulkefli Ahmad Makinudin as heads of the judiciary.
This judicial nadir provides the impetus for the present government to insulate the judiciary from political influence. A commendable move indeed. But how?
The proposal is for a Parliamentary Select Committee (PSC) to vet candidates for judicial positions before their names are then submitted to the King, to cull the absolute power of the prime minister in making the appointments.
The PH Manifesto promise 19 states: The power of the prime minister to influence the appointment of judges will be removed so that there can be no abuse of power. Prime Minister Tun Dr Mahathir Mohamad said: "Judges do not have to be afraid to carry out their duties fairly."
The proposal has received mixed reaction from lawyers and civil society.
It erodes, they say, the "separation of powers" doctrine whereby any improper action of the executive and legislature can be challenged; and put right by the judiciary.
This may be compromised if the legislature has influence in recommending the appointment and promotion of judges.
Some propose that the JAC be given independent status guaranteed by the Constitution.
This still begs the cardinal question: who will appoint members to the JAC? The PH manifesto wants this done by the PSC.
The UK's JAC comprises 15 commissioners, 12 of whom are appointed through open competition. The other three are selected from among judges by the judges' council.
In India the appointment of judges is by a collegium system, established by a 1993 landmark Supreme Court judgment: Supreme Court Advocate-on-Record Association v Union of India.
The chief justice along with two (later increased to four) senior-most judges of the court recommend the names for the appointment.
The executive must give effect to the recommendation. The executive can question the recommendation once. Thereafter, if the same decision is reached by the collegium again that will be declared final.
Declared the court: "The role of chief justice is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter."
The constitutional provision requiring the president for "consultation" with the chief justice and other judges should be understood as "concurrence", the court ruled.
Later attempts to replace the collegium system by a JAC comprising several members of the executive and legislature, were struck down as unconstitutional, on the grounds that "(I)t is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has yet not evolved. The expectation from the judiciary to safeguard the rights of the citizens of this country can only be ensured by keeping it absolutely independent from the other organs of governance".
By contrast, in the US, the president nominates judges and must get the approval of the Senate because members of Parliament have to report back to the people; justices do not.
It's a question of accountability, especially since courts and judges are seen as distanced from the aspirations of a new government seeking to effect transformational changes.
The courts wittingly or otherwise can, by their decisions, settle controversies over constitutional values. This saps democracy of its vitality.
Too often the decisions have muted the voice of the people in what former US president Barack Obama termed the "essential democratic conversation" – and closed off avenues to desperately needed change. An experience we share in Malaysia.
Witness how our courts summarily dismissed actions brought in respect of the Election Commission's manipulation of the electoral roll and boundaries just before the 14th general election. The prime minister reiterated his proposal last week in Parliament.
The challenge now posed: how to insulate the judiciary from any interference by other organs of government while concomitantly ensuring it does not impede the transformational aspirations of a new government. This finally resolves into: who should appoint the judiciary?

Gurdial Singh Nijar, a former University of Malaya law professor, currently practises law. Comments: letters@thesundaily.com