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EPISODE 28: JUDICIAL APPOINTMENT



I. Introduction

The appointment of judges stands as a crucial pillar in the foundation of a just and effective legal system, wielding significant implications for the administration of justice and the preservation of the rule of law. The appointment of judges is not merely a bureaucratic task; it is a nuanced interplay of legal, political, and ethical considerations that ultimately shapes the character and efficacy of a nation's judiciary.


In Malaysia, the judicial appointment process unfolds within a carefully structured framework outlined in the Federal Constitution. When a judicial vacancy emerges due to retirement, resignation, or elevation, the Judicial Appointments Commission (JAC) steps into action. Mandated by Article 122B of the Federal Constitution.The JAC meticulously evaluates potential candidates, considering their legal qualifications, experience, and other relevant factors. Subsequently, the JAC proposes a list of candidates to the Prime Minister, who reviews the recommendations before advising the Yang di-Pertuan Agong, the Malaysian monarch. The final decision rests with the monarch, who, upon receiving the Prime Minister's advice, grants formal consent. Following this, the selected candidate is officially appointed as a judge, taking the oath of office and assuming their role on the bench. In certain instances, parliamentary approval may be sought, especially for higher judicial positions, adding an additional layer of scrutiny to ensure the nominee's qualifications and suitability align with the nation's legal standards. This process is designed to strike a delicate balance between constitutional monarchy, democratic principles, and the paramount importance of upholding the rule of law in Malaysia.


II. POLITICAL INFLUENCE ON JUDICIAL APPOINTMENTS AND MAINTAINING JUDICIAL INDEPENDENCE AND INTEGRITY

In general, the effective functioning of a government relies heavily on the collaboration between its legislative, executive and judiciary branches. Furthermore, a democratic country such as Malaysia requires a clear check and balance between its branches, otherwise without proper regulations that separate its power, there will be an abuse and overlapping of power between the three organs of the government. However, in Malaysia, a flexible approach to the doctrine of separation of powers is adopted whereby the legislative and executive share the same hat as the Prime Minister is both a member of House of Representatives or Dewan Rakyat as well as the head of the executive running the government of the day whereas the judiciary maintains its own independence from the executive and legislative. The judiciary also is a vital branch of government which is responsible for governing itself and is accountable to the public. Additionally, judicial independence ensures that judges are free to conclude that actions or decisions taken by the government are in violation of the law. As a result, a clear separation of powers and the establishment of a judicial independence are important to foster a system of checks and balances in Malaysia.


However, in judicial appointments, the executive has some influence over the judiciary. Under Article 122B(1) of the Federal Constitution, it prescribes that the Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers. Thus, the Prime Minister, the head of the executive, has some role in the appointment of the superior court judges by providing advice to the Yang di-Pertuan Agong for him to act on them. Additionally, before providing advice on the appointment of a superior court judge other than the Chief Justice, the Prime Minister must consult the Chief Justice of Malaysia, as mandated by Article 122B(2) of the Federal Constitution. Nonetheless, the judiciary must be wholly independent from political interests and intervention to perform its role effectively in a system of separation of powers with check-and-balance between them, the executive and the legislative, where each branch of government is able to check the powers of the other branches to prevent any abuse of power.


Regardless, there have been some instances where politics can influence the appointment of judges to be elevated. In the United States, an incident where political influence can stymie the nomination and appointment of judges is seen in Robert Bork’s failed nomination. Robert Bork was unfairly denied a seat on the United States Supreme Court by politicians, the members of the House of Senate, strictly for political reasons. In his personal postmortem of his failed 1987 nomination to the Supreme Court, he claimed that the reason his nomination generated controversy and was denied being nominated to be a judge of the Supreme Court was due to the political influence in the House of Senate.  In addition, besides Robert Bork, there were other circumstances where judges were not nominated to become judges of the Supreme Court. Tersely, all Supreme Court judge appointees who were rejected claimed to be victims of venal political interests. One of them is Judge John Parker, where he was rejected to be appointed as a Supreme Court judge by the members of the Senate due to his political views being unacceptable to the Senate. According to Professor Kaufman of the Harvard Law School, he opined that John Parker was rejected primarily on ideological grounds from liberals and progressives within the Senate. Such rejections were evidence that the Senate, comprising members of the legislative branch, had not employed an altruistic, and pure criteria by way of an individual’s competence, integrity and judicial temperament in appointing their judges but rather a political criterion which suits their ideologies and beliefs which causes unfairness and speculation in the integrity of the Senate in handling judicial appointments. As a result, politics can influence the outcome of the appointment of judges whether their ideologies and beliefs are aligned to the House of Senate, which can generate controversy and lead to unfairness, injustice and inequality to judges.


Further, looking back at Malaysia, although the executive branch vide the Prime Minister plays a vital role in the appointment of judges of the superior courts, there are constitutional safeguards in ensuring transparency and fairness in judicial appointments, wherein Article 122B of the Federal Constitution sets forth a comprehensive and multi-tiered process of consultation between the Prime Minister, superior court judges, the JAC, the Yang di-Pertuan Agong and the Conference of Rulers preceding every judicial appointment. To safeguard the independence of the judiciary, the JAC was established via Section 4 of the Judicial Appointments Commission Act 2009. The said Act was promulgated to improve and complement the constitutional method of appointing judges of the superior courts and ensures that only those with proper qualification, integrity and calibre are appointed to the judiciary.  Section 2 of the Judicial Appointments Commission Act 2009 stipulates that the Prime Minister must uphold the continued independence of the judiciary and must have regard to the need to defend that independence under paragraph (a), the need for the judiciary to have the support necessary to enable them to exercise their functions pursuant to paragraph (b), and the need for public interest to be properly represented in regard to matters relating to the judiciary, the administration of justice and related matters in accordance with paragraph (c).


A set of criteria are laid out to the JAC in appointing judges to the judiciary whereby they are based on integrity, competency and experience, objective, impartial, fair and good moral character, decisiveness, ability to make timely judgments and good legal writing skills, industriousness and ability to manage cases well and physical and mental health as propounded in Section 23(2) of the Judicial Appointments Commission Act 2009. Moreover, in accordance with Section 23(3) of the Judicial Appointments Commission Act 2009, It provides that a person who is a serving judge or judicial commissioner must not be appointed if he has three or more pending judgments or unwritten grounds of judgments that are overdue by sixty days or more from the date they are deemed to be due. It is also pertinent to mention that the Commission, in selecting candidates, must also take into account the need to encourage diversity in the range of legal expertise and knowledge in the judiciary as prescribed in Section 23(4) of the Judicial Appointments Commission Act 2009.


Hence, the Malaysian Judicial Appointments Commission serves a crucial role in selecting its candidates to become superior court judges through a scrupulous and procedural scrutiny on their backgrounds. In the case of Robert Linggi v The Government of Malaysia, the court exposited that a JAC was established mainly to make recommendations to the Prime Minister on the candidates to be appointed as judicial commissioners or judges and their promotions and thus merely provided a process in which candidates for judgeship were vetted by the JAC. Since the Federal Constitution did not provide any process in which the credentials of the candidates for judgeship were to be discussed before they were presented to the Prime Minister for consideration, it was clear that the Judicial Appointments Commission Act 2009 which attempted to rectify those shortfalls was a welcome piece of legislation. Further, the function of the JAC was to only recommend qualified candidates for judgeship to the Prime Minister and that the Prime Minister’s discretion is completely untouched as provided in Article 122AB of the Federal Constitution and 122B of the Federal Constitution.


In a nutshell, political influence should not interfere with the integrity of the judiciary as well as in the appointment of judges as it could lead to detrimental effects on democracy by undermining the independence of the court, enabling corruption, impeding economic growth and reinforcing a vicious cycle of dishonest leaders. The Prime Minister has much power in appointing judges as the current judicial system of appointment is a converge between the selection of candidates by the JAC and the approval and advice of the Prime Minister, however, he must exercise his power with due diligence and integrity to maintain the independence and transparency of the judiciary for public interest and to uphold the Federal Constitution and the doctrine of separation of powers. As spotlighted in the landmark case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals, the court highlighted that judicial independence and the doctrine of separation of powers are recognised as features of the basic structure of the Federal Constitution, making them sacrosanct in Malaysia’s constitutional framework. In the end, to produce an independent judiciary, much fairness and careful consideration must be given in appointing Malaysian judges. 


III. Potential reforms to the Current Judicial Appointment Process

Judges play a crucial constitutional role in interpreting and applying the law. According to Dicey’s third postulate, the judiciary is the beacon of justice. They are expected to adhere to strict application of the law and render judgement in a way that is completely impartial. As per discussed earlier, the process of judicial appointments in Malaysia, like in many other countries, has been subjected to criticism and scrutiny, with concerns raised about transparency, impartiality, and political influence. To address these challenges and bolster public confidence in the judiciary, there is a pressing need for comprehensive reform. This paragraph proposes a series of reforms aimed at enhancing judicial independence, accountability, and professionalism in Malaysia.

The Federal Constitution of Malaysia mandates that the Yang di-Pertuan Agong appoints the judges in the higher judiciary based on the Prime Minister's advice, with no discretion. While consultation with the Conference of Rulers is required, it's seen as a mere formality without substantial influence on the appointments. It must be acknowledged that assigning the appointment authority to a single individual is inadequate, as it creates the perception that the judiciary is subservient to the executive branch. This system has raised concerns about the potential for political interference in the judiciary and has undermined public confidence in the independence and impartiality of the courts. There have been a few reforms proposed by the Malaysian Bar Council and legal experts in Malaysia


At the core of efforts to reform Malaysia's judiciary is the establishment of an Independent Judicial Appointments Commission (JAC), composed of individuals from diverse legal, academic, and civil society backgrounds. This commission would oversee judicial appointments without political interference, ensuring candidates are chosen based on merit, integrity, and commitment to the rule of law. Furthermore, such independence of judicial appointment can be achieved by limiting the role of the executive in appointing superior court judges, similar to practices in the United Kingdom. In the United Kingdom, prior to the passing of the Constitutional Reforms Act 2005 by the Labour Government, judicial appointments were made on the recommendation of the Lord Chancellor who is part of the executive body. Currently, under Malaysia's Judicial Appointments Commission Act (JACA), the Prime Minister can request additional nominees if unsatisfied with the recommendations from the JAC, revealing flaws in the system. Such executive discretion compromises the independence of the judiciary. Moreover, the Malaysia Bar Council strongly supports the idea of completely removing the power of the Prime Minister in the appointment process. Hence, it's essential to prevent undue executive influence over judicial appointments to uphold judicial independence.


Secondly, Under the proposed reform, the JAC would adopt transparent selection criteria and procedures, emphasising merit-based selection. Candidates would be assessed based on their qualifications, experience, and commitment to upholding the rule of law, rather than political affiliation or allegiance. By prioritising merit and competence, the judiciary would attract the best legal talent, capable of dispensing justice impartially and fairly. Moreover, the JAC would conduct its proceedings openly, allowing for public scrutiny and participation in the appointment process. This transparency would foster accountability and ensure that judicial appointments are made in the public interest. In addition, it is important to consider concerns about the democratic accountability of the judiciary, especially as it is an unelected body. 


An independent and diverse JAC can safeguard judicial independence. According to the United Nations Special Rapporteur on the Independence of Judges and Lawyers, the commission's composition should be "plural and balanced" to protect the judiciary and its career processes from political interference. Thirdly, there must be a careful consideration given to the composition and powers of the JAC to ensure its effectiveness in upholding judicial independence. Presently, the JAC is predominantly composed of judicial members, with only one member from academia out of nine. To address this issue, the JAC needs to include non-judicial members in its selection board. Additionally, in order for the judiciary to enjoy its legitimacy through public confidence, it is important to have a diverse member in its composition. A more diverse judiciary will certainly improve the decision making process by ensuring that the perspectives and experiences of marginalised communities are taken into account.


For this reason, the judiciary holds a vital constitutional role in upholding justice and ensuring the strict application of the law. However, the process of judicial appointments in Malaysia has faced criticism due to concerns about transparency, impartiality, and political influence. Therefore, comprehensive reforms are urgently needed.


IV. Comparing Malaysia’s judicial appointment process to other jurisdictions   

While we should constantly and persistently sought for measures to improve our judicial appointment process, we should also be moving our sights beyond our borders and delve into the vast pool of examples of how foreign jurisdictions and their laws approach the issue of judicial appointments and the actual effects of such systems so we could gain valuable insight which could be utilized as a source of inspiration for future reforms to our judicial appointment process.


1. United States

The insufficiency of the articles of confederation, which was drafted as a temporary means to govern the nation, gave birth to the current US constitution, a document which places heavy emphasis on the separations of powers by delineating authority to each of the branches of government. 


The power of judicial appointments to the supreme court and other federal courts in the US is separated between the executive and legislative branch. Article 2 section 2 of the US Constitution states that the president shall have the power, with the advice and consent of the senate, to appoint the judges of the supreme court. In essence, when a vacancy occurs in the supreme court whether due to resignation or death, the president shall nominate someone who he thinks is capable of exercising such duty, and the senate shall examine the candidate’s competence through a series of hearings by the senate judiciary committee before the full senate could choose to either confirm or reject the nominee picked of the president.While this process does the job of preventing any branch of the government from wielding excessive influence on the judicial appointment process, the actual execution of the process has seen some complications especially in recent years.


1.1 The lack of representation

The senate was formed as a result of a compromise between the larger and smaller states, giving them equal representation without taking into account their differences in terms of population. The United States Senate was explicitly designed to be undemocratic: It represents states, not people. Half of the nation’s people have only 18 senators representing them, while 52 senators represent just 18 percent of Americans.Naturally, people from larger states would be less than thrilled to know that their opinions are not equally represented in the judicial appointment process. However, the alternative would be entrusting the House of representative with partial or full participation in the judicial appointment process. The lower chamber, with its biennial elections, was designed to have an immediate dependence on, and an intimate sympathy with, the people.However, such changes would come with its own controversies as the framers chose the senate as the body to confirm judicial appointments as it was not as affected by public opinion as much as the house of representatives.This however, may no longer be the case as the 17th amendment ended the practice of state legislatures electing the senators as stated in article 1 section 3 of the constitution before the amendment  and replaced it with direct elections of the people. 


1.2 Over politicisation

Supreme court confirmations used to be less contentious as compared to current days where every single aspect of the process has been politicised. Back when  President Franklin  D.Roosevelt was in office, all 9 of his nominees to the supreme court were confirmed, with only 2 requiring  a roll call vote, while the others were confirmed through voice vote. This trend has continued up until the confirmation of Robert Bork, where the senate rejected President Reagan’s nominee by a vote of 42-58 after a contentious debate where Senate Democrats brought up legal writings from Bork dating back to 1963, when he wrote a New Republic article opposing the proposed 1964 Civil Rights Act.After the senate judiciary committee declined to recommend Bork for a full senate vote, Robert Bork mentioned that “if judicial candidates are treated as political candidates the effect will be to erode public confidence and endanger the independence of the judiciary.”


After the rejection of Robert Borks’s nomination, the degree of Bi-partisan support for supreme court nominees has steadily dwindled ever since. Another turning point  for Bi-partisan support for supreme court nominees occurred when President Obama nominated judge Merrick B.Garland to replace justice Scalia on a presidential election year. Hours after Justice Scalia’s death, Senate majority leader at the time, senator Mitch Mcconnell issued a statement stating that “this vacancy should not be filled until we have a new president”. Other senate republicans concurred with Mcconnell’s statement and cited Then vice President Joe Biden's Speech on the senate floor stating “action on a Supreme Court nomination must be put off until after the election campaign is over.” This act has largely been seen as the final nail in the coffin as the preceding confirmation votes have been largely down party lines with senators from the same party as the president voting in favor and the others against with few exceptions. 


The confirmation hearings, which were live streamed on all major news broadcast networks, were initially meant to increase public participation and awareness in the process.Now, the hearings places more emphasis on airing political grievances than addressing the issue at hand. Public confidence in the supreme court has dropped to an all time low in recent years with polls showing only 49% of Americans having trust in the judicial branch headed by the supreme court.


If Malaysia were to go down the path of including the legislature in the judicial appointment process, it would be hard to tell if the politicisation of the process which happened in America would lay roots in our judicial appointment process, but it definitely acts as an important reference for Malaysia when it comes to exploring the potential reforms to the Malaysia judicial appointment process.


2. Japan

          The japanese constitution, also known as the MacArthur constitution,was drafted after the conclusion of the second world war and was written primarily by American civilian officials working under the Allied occupation of japan. While the Japanese constitution was largely drafted by American officials, the resulting constitution laid down a distinct approach to judicial appointments.

          

The process of Japan’s judicial appointment can be found in article 79 of the japanese constitution, which states that all judges of the supreme court excluding the chief justice shall be appointed by the cabinet while the chief justice shall be appointed by the emperor as designated by the cabinet. Interestingly, article 79 includes a mechanism where the public may voice their opinions and have a say in the process. After the justices have been appointed, the appointment will be reviewed by the people after the first general election of the house of representative following their appointment. The appointment shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten (10) years, and in the same manner thereafter.

         

The Japanese system essentially places the duty of reviewing judicial appointees on the hands of the japanese citizens instead of relying on politicians in the legislative branch. In actual practice, for a justice to be removed from office, a majority of eligible voters must cast a “no” vote. Till this day, there has been no supreme court justice that has been voted out of office and the National review which was held alongside the general election on the 31’st of october 2021 saw all 11 justices who were on the ballot  successfully retaining their seats on the bench.The past national reviews held were never as contentious as the historical record for the highest “no” vote was only at 15.7% for then justice Takeso Shimoda in the 1972 national review.

          

However, the nature of the constitutional task prescribed to the supreme court makes it impossible for the court to escape the jaws of politics.While it is true that no Justices have ever been voted out of office,it doesn't mean the national reviews go by without controiversies.In the aforementioned 2021 national review, there was a movement which targeted multiple supreme court justices who were up for election sparked by their decision which upheld the civil code provision which required married couples to to take a common last name either from the wife or the husband.On the other hand, those who supported the mentioned civil code provision also campaigned online, targeting the justices who ruled that the provision was “unconstitutional”.It could be said that the ruling  on the civil code provision greatly affected the outcome of the national review as the result was three tiered.The four justices who ruled that the provision was constitutional received the highest “no”votes, followed by the three who said the provision was unconstitutional,who got the second highest number of”no”votes. They were followed by the four justices who were appointed after the ruling was made.  


3. United Kingdom

The Judicial appointment process for the justices of the supreme court of the United Kingdom can be found in the Constitutional Reform Act 2005 and The Supreme Court (Judicial Appointments) Regulations 2013.


Section 25 of the CRA 2005 provides that only persons who have held high judicial office for at least 2 years or those who have been a qualifying practitioner for a period of at least 15 years are eligible for being appointed to the UK supreme court.When a vacancy arises, the Lord Chancellor convenes a selection commission  tasked at selecting the suitable candidate. This commission has a minimum of five members which must include a member who is non-legally qualified,one judge of the court,a member of the judicial appointments commissions,a member of the judicial appointment board of scotland,and a member of the Northern Ireland Judicial appointment commission.While not required by law, the vacancy will be advertised so that qualifying candidates could submit their written applications. When the selection commission finally decides on a candidate, they would recommend the candidate to the Prime minister, who by law is required to recommend that candidate to the Sovereign for the official appointment.


V. THE EFFECTS OF JUDICIAL APPOINTMENTS ON THE INDEPENDENCE OF THE JUDICIARY AS A WHOLE  

To ensure the independence of the judicial system, the appointment and removal of the judges must be free from any intervention or discrimination. However, in reality, achieving judicial independence is currently impossible due to the involvement of executives in the appointment of judges. Based on the studies by Djik, the executive will maintain some influence over the judiciary by manipulating the judicial appointments system to avoid submitting crucial judgments for review. This is so prevalent in the system that several parties have called for the removal of the executive’s role in judges’ appointments such as the Chief Justice herself, the MADPET (Malaysian Against Death Penalty and Torture) organization, and even the Conference of Rulers. 


Referring to Article 122B(1), judges and all administrative office holders will be appointed by the Yang di-Pertuan Agong, acting on the prime minister's suggestion and in consultation with the Conference of Rulers. It is to be noted that in the appointment of other judges besides the Chief Justice herself, the Prime Minister must seek advice from the Chief Justice according to subsection (2). Also, in Section 27 of the Judicial Appointments Commission Act 2009, the Prime Minister may seek two extra names for consideration for any vacancy in the positions of the judges mentioned in Article 122B(1). By observing all of these provisions, we could simply say that the Prime Minister has the final say in appointing the judges as the YDPA has no discretion and is bound to follow the advice of the Prime Minister. This could open a floodgate of cronyism and favoritism in judicial appointments as what happened during the 1988 judicial crisis previously.


As we can see, the independence of the judiciary heavily depends on judicial appointments. When the core of judicial appointments is not free from other entities other than the judiciary, judicial independence cannot be achieved in the first place. Hence, a reform to judicial appointments is crucially important to divorce it from political influence and ensure deserving candidates get their deserving positions.


1 THE EFFECTS OF PUBLIC OPINION ON JUDICIAL APPOINTMENTS

Frankly, public opinion seems to play a small role in judicial appointments as the formal process of appointing judges only involves government authorities like the Prime Minister and legal bodies as stated in Article 122B of the Federal Constitution. However, public opinion can impact the larger framework within which these appointments occur. 


As an example, in the scenario of unfair appointments of the judges, there would be an erosion of confidence of the public towards the integrity of the judiciary, and the government as well as the Prime Minister plays a key role in judicial appointments. This would undermine the legitimacy of the judicial appointments. These would trigger the public call for reform of the system in judicial appointments as what was done by the MADPET  (Malaysian Against Death Penalty and Torture) organization where they made a call to remove the Prime Minister’s role in appointment and elevation of judges to ensure the independence of the judiciary.


In a nutshell, public opinion is an important indicator of society's expectations and ideals affecting judicial appointments in Malaysia. While formal decision-making procedures may remain the domain of government institutions and legal authorities, public opinion can have a significant indirect impact, shaping the bigger picture in which these decisions are made and prompting administrators to weigh the public's demands and concerns.

 

2 THE EFFECTS OF PUBLIC CONFIDENCE AND TRUST IN THE JUDICIARY

Public trust and confidence in the judiciary are essential for Malaysia's legal system to work effectively. When the public feels that the court is impartial, transparent, and trustworthy, it increases confidence in the rule of law and the judiciary. Conversely, a lack of trust or confidence can undermine the legitimacy of court rulings and diminish trust in the legal system.


From the perspective of the current Chief Justice, The Right Honourable Tun Tengku Maimun binti Tuan Mat, she views public confidence and popularity may be closely related, but might not have the same meaning. Popularity is a mere outcome of strong confidence by the public to the judges. As mentioned during her speech at the opening of the legal year 2024, public confidence in the Judiciary poses a measuring tool for the transparency of the judges and holds them accountable to the public.


The public confidence in the judiciary has ebbed and flowed throughout the years due to many challenges and tribulations the judiciary has gone through. One of the most apparent events that caused the judiciary to lose public confidence was the 1988 judicial crisis. Questions on the unjust dismissal of the former Lord President, Tun Salleh Abbas, as well as the appointment or elevation of certain judges were raised. This incident has severely tarnished the judiciary’s reputation and it took a while to recover from it. Thankfully, the effect of this incident is slowly declining, due to the courage and integrity demonstrated by recent judges, including the current Chief Justice. 


In Malaysia, maintaining public faith in the court necessitates constant efforts to reinforce institutional safeguards, promote judicial independence, combat corruption, and improve access to justice for every citizen. By emphasizing transparency, accountability, and justice, Malaysia can maintain the rule of law and guarantee that the judiciary remains a reliable pillar of democratic administration.


VI. Conclusion

In conclusion, the process of judicial appointment is fundamental in maintaining the integrity and independence of the judiciary and it is crucial for ensuring impartial justice. A comparative analysis with other jurisdictions unveils a spectrum of models, each with its strengths and challenges. The UK's meritocratic approach, the political dynamics of the US Senate confirmations, and Japan's unique legal traditions offer valuable lessons. Malaysia, positioned at this crossroads, has the opportunity to learn, adapt, and refine its approach to strike a balance that aligns with its legal and cultural context. Lastly, the far-reaching effects of judicial appointments on the independence of the judiciary underscore the critical importance of public perception. Transparency emerges as a key factor, with public opinion intricately woven into the fabric of judicial legitimacy. Legal systems, including Malaysia's, have a responsibility as guardians of justice to create a clear and responsible process for appointing judges. This process should be open and accountable, able to resist political influences, and align with what the public expects.



REFERENCES

[1] Federal Constitution (Malaysia) art 122B


[2]n.a. (2015). How are judges appointed in Malaysia? Retrieved 15 March 2024 from https://www.lawyerment.com/library/kb/Legal_Institutions/Judiciary/1001.html


[3]Nurin Qistina Binti Izarudin Shah, Nur Ashsyifa' Aqila Binti Mohd Yusof, Jady Zaidi Hassim & Thamer Rmadhan Ameen. (2023). The Political Judgment in the Judiciary System in Malaysia. Journal of Geopolitics Quarterly, 19, 167, 179. Retrieved from <https://journal.iag.ir/article_175322.html>. Site accessed on 7 Mar 2024. 


[4] See footnote 3 above.


[5] Federal Constitution (Malaysia) art 122B(1).


[6] Federal Constitution (Malaysia) art 122B(2).


[7] Bork, R. H. (1990). The Tempting of America: The Political Seduction of the Law. New York, United States of America: Macmillan Publishers, 298.


[8]Kahn, M. A. (1995). The Appointment of a Supreme Court Justice: A Political Process from Beginning to End. Presidential Studies Quarterly, 25(1), 25, 26. Retrieved from <https://www.jstor.org/stable/27551374>. Site accessed on 7 Mar 2024.


[9]Kaufman, A. (1979). Cardozo’s Appointment to the Supreme Court. New York, United States of America: Macmillan Publishers, 29.


[10]Tun Tengku Maimun binti Tuan Mat cited as Tengku Maimun binti Tuan Mat. (2023). Safeguarding and Strengthening the Independence of the Judiciary. Journal of the Malaysian Judiciary, 1, 1, 5. Retrieved from <https://www.jac.gov.my/spk/images/stories/4_penerbitan/journal_malaysian_judiciary/julai2023.pdf>. Site accessed on 8 Mar 2024.


[11]Federal Constitution (Malaysia) art 122B. 


[12] Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 4.


[13]Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 2(a).


[14]Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 2(b).


[15]Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 2(c).


[16]Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 23(2).


[17]Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 23(3)


[18]Judicial Appointments Commission Act 2009 (Act 695) (Malaysia) s 23(4).


[19]Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741, 743.


[20]Federal Constitution (Malaysia) art 122AB.


[21]See footnote 11 above.


[22] Nurin Qistina Binti Izarudin Shah, Nur Ashsyifa' Aqila Binti Mohd Yusof, Jady Zaidi Hassim & Thamer Rmadhan Ameen. (2023). The Political Judgment in the Judiciary System in Malaysia. Journal of Geopolitics Quarterly, 19, 167, 185. Retrieved from <https://journal.iag.ir/article_175322.html>. Site accessed on 8 Mar 2024.


[23]Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, 567.


[24]A.V. Dicey “An Introduction to the Study of the Law of the Constitution” (Liberty Classics, 1982)


[25]Dhanapal, S., Sabaruddin, J. S.: Judicial Independence in Malaysia: Is it a Myth or a Reality?. In Sharom, A., & Spooner (Eds.), Human Rights and Democracy in Indonesia and Malaysia. (pp 111-142). Petaling Jaya, Selangor; Nakhorn Pathom, Thailand: Strategic Information and Research Development Centre (2019).


[26]Jenita Kanapathy. (2024). Rethinking Judicial Appointments in Malaysian Superior Courts: Constitutional Reforms. Taylors University, Malaysia. Retrieved from  <https://www.atlantis-press.com/article/125997179.pdf> Site accessed on 17 March 2023.


[27](2022, Dec 1). Reforms to Laws Necessary to Preserve Independence of the Judiciary. Malaysian Bar Retrieved from <https://www.malaysianbar.org.my/article/about-us/president-s-corner/pressstatements/press-release-reforms-to-laws-necessary-to-preserve-independence-of-the-judiciary> Site accessed on 18 March 2023


[28]Garry Slapper and David Kelly, The English Legal System (17th ed, Taylor & Francis Group, 2017) p456


[29]See footnotes 27 above 


[30] Rahimy Rahim. (2022, 15 Dec) Judicial appointments need reforms. The Star Retrieved from <https://www.thestar.com.my/news/nation/2022/12/15/judicial-appointments-need-reforms> Site accessed on 18 March 2023


[31] See footnotes 27 above 


[32] United Nation. Report of the Special Rapporteur on the independence of judges and lawyers. UN Doc A/HRC/38/38 (2018). https://digitallibrary.un.org/record/1637422?ln=en. See para 17, last assessed 18/03/2024.


[33]‘A more diverse Judiciary would increase confidence in the justice system say Lords Constitution Committee’ (UK Parliament) <https://www.parliament.uk/business/lords/media-centre/house-of-lords-media-notices/2012/march-2012/a-more-diverse-judiciary-would-increase-confidence-in-the-justice-system-say-lords-constitution-committe-/>   

  

[34] Carswell, J. (2019).The Insufficiency of the Articles of Confederation.Proceedings of The National Conference On Undergraduate Research (NCUR) 2019.Retrieved from<https://libjournals.unca.edu/ncur/wp-content/uploads/2021/02/3036-Carswell-Jordan-FINAL.pdf>


[35] The Constitution of the United States art 2 sec (2).


[36]Hamilton,A. Madison,J. The Federalist Papers : No. 62


[37] EBERHARD,K. (n.d.).Convert the Senate to a Citizen’s Assembly.Retrieved from<https://www.billtrack50.com/blog/perspectives-on-the-senate>


[38]Hamilton,A. Madison,J. The Federalist Papers : No. 52


[39]See Footnote 36 above


[40]United States senate.Supreme Court Nominations (1789-Present). Retrieved from <https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm> Site accessed on 13 March 2024.


[41] NCC Staff.(2023, Oct 23). On This Day: Senate rejects Robert Bork for the Supreme Court


[42]See Footnote 41 above


[43] Eric Bradner.(2020, Sept 19). Here’s what happened when Senate Republicans refused to vote on Merrick Garland’s Supreme Court nomination. CNN. Retrieved from <https://edition.cnn.com/2020/09/18/politics/merrick-garland-senate-republicans-timeline/index.html>.


[44]See Footnote 43 Above


[45] Kelsey Reichmann.(2022, March 22). Politicization of the Supreme Court starts in the Senate


[46]Megan Brenan.(2023, Sept 29). Views of Supreme Court Remain Near Record Lows



[48]The Constitution of Japan (art 79) 


[49]The Constitution of Japan (art 6)


[50]See Footnote 48

 

[51]See Footnote 48


[52]Jintaro Chikamatsu(2021, Nov 2). All 11 Japan Supreme Court justices under Oct. 31 national review pass. The Mainichi. Retrieved from <https://mainichi.jp/english/articles/20211102/p2a/00m/0na/003000c>


[53]See Footnote 52


[54]Jintaro Chikamtasu, Ai Kunimoto.(2021,Nov 16).How social media campaigns affected Japan Supreme Court justices' national review. The Mainich.Retrieved from<https://mainichi.jp/english/articles/20211116/p2a/00m/0na/025000c>


[55]Constitutional Reform Act 2005(United Kingdom)


[56]The Supreme Court (Judicial Appointments) Regulations 2013(United Kingdom)


[57]Constitutional Reform Act 2005(United Kingdom) Section 25(1)(a)


[58]Constitutional Reform Act 2005(United Kingdom) Section 25(1)(b)


[59] Constitutional Reform Act 2005(United Kingdom) Section 27(1b)(a)


[60]Constitutional Reform Act 2005(United Kingdom) Section 27(1b)(b)


[61] Constitutional Reform Act 2005(United Kingdom) Section 27(1b)(c)


[62]Constitutional Reform Act 2005(United Kingdom) Section 27(1b)(d)


[63]Constitutional Reform Act 2005(United Kingdom) Section 27(1b)(e)


[64]The Supreme Court of the United Kingdom.(May,2023).Appointments of justices.Procedure for Appointing a Justice of The Supreme Court of the United Kingdom. Retrived From <https://www.supremecourt.uk/about/appointments-of-justices.html>


[65]  Constitutional Reform Act 2005(United Kingdom) Section 26(3)(a)


[66]Kanapathy, J. (2024, January). Rethinking Judicial Appointments in Malaysian Superior Courts: Constitutional Reforms. In Proceedings of the 12th UUM International Legal Conference 2023 (UUMILC 2023) (Vol. 15, p.15). Springer Nature.


[67]Hector, C. (2023, January 19). Remove PM's role in appointment and elevation of judges. MalaysiaNow. https://www.malaysianow.com/opinion/2023/01/19/remove-pms-role-in-appointment-and-elevation-of-judges


[68]Federal Constitution (Malaysia), Art. 122B(1)


[69]Federal Constitution (Malaysia), Art. 122B(2)


[70]Raja Aziz Addruse. (2002). Judicial Appointments: Who Has The Last Say. The Journal of the Malaysian Bar,4,43–59. <https://www.malaysianbar.org.my/cms/upload_files/document/43-59_Raja_Aziz_Addruse-4.pdf> Site Accessed on 16 March 2023


[71]See footnote 68 above.


[72]See footnote 67 above. 


[73]Kathirasen, A. (2022, July 27). Why judicial appointments matter. Free Malaysia Today. <https://www.freemalaysiatoday.com/category/opinion/2022/07/27/why-judicial-appointments-matter/> Site Accessed on 16 March 2023


[74]Speech by the honourable the Chief Justice of Malaysia, Tun Tnegku Maimun binti Tuan Mat on the occasion of the Opening of the Legal Year 2024 (‘OLY 2024’)


[75] Raja Aziz Addruse. (2002). Judicial Appointments: Who Has The Last Say. The Journal of the Malaysian Bar, 4, 43–59.




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