Manufactured outrage over judicial appointments: a case of selective memory

Manufactured outrage over judicial appointments: a case of selective memory

It is laughable, if not deeply ironic, that a group of MPs, the Malaysian Bar, and civil society figures are now calling for a royal commission of inquiry, petitioning the prime minister and organising walks for justice and public forums all because they fear the prime minister may appoint senior judges without strictly following the names recommended by the Judicial Appointments Commission (JAC).

Even more amusing is their insistence that the top judicial vacancies must be urgently filled despite the fact that no legal or constitutional deadline mandates immediate appointment.

Let’s be clear: this hysteria is entirely based on a hypothetical scenario, one that has not even materialised. According to Section 27 of the JAC Act, the prime minister is perfectly entitled to request two more names for any judicial vacancy, including the offices of the chief justice, president of the Court of Appeal, and other top positions. The law allows room for executive discretion in such appointments.

Section 27, titled “Request for further selection by the prime minister”, says the “prime minister may, after receiving the report under Section 26, request for two more names to be selected and recommended for his consideration”.

Even former Court of Appeal judges – the late Gopal Sri Ram, Hishamudin Yunus, and Mah Weng Kwai – publicly stated that the prime minister is not bound to accept the JAC’s recommendations.

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In 2018, they noted that the Federal Constitution, being the supreme law, overrides the JAC Act. Mah, for example, plainly said: “The JAC makes recommendations to the prime minister, who may decide not to agree with the proposals.”

Where are these same voices now, when the media circus rages over a potential decision that has not even been made?

The deafening silence over real violations

What makes this sudden outrage even more disingenuous is the utter silence over actual, proven breaches of the JAC Act and the Federal Constitution. These are not speculative concerns, but documented in the government-declassified special task force (STF) report on allegations made by former attorney-general Tommy Thomas in his book “My Story: Justice in the Wilderness”.

This STF was approved by the Cabinet on Dec 22, 2021 and comprised respected legal experts, including Fong Joo Chung as the chair besides members Hashim Paijan, Junaidah Kamarruddin, Jagjit Singh, Shaharudin Ali, Balaguru Karuppiah, Farah Adura Hamidi, and Najib Surip.

The report uncovered staggering facts. In July 2018, the names appointed to the highest judicial offices – Richard Malanjum as chief justice, Ahmad Maarop and Zaharah Ibrahim as Court of Appeal president and David Wong Dak Wah as chief judge of Sabah and Sarawak — were not those selected by the JAC in its meeting on May 24, 2018. Instead, they were names privately agreed upon between then prime minister Dr Mahathir Mohamad and attorney-general Tommy Thomas, bypassing the mandatory processes.

The JAC’s recommended names on May 24, 2018 were Azahar Mohamed for chief justice, Rohana Yusuf for Court of Appeal president, and Abdul Rahman Sebli for chief judge of Sabah and Sarawak. Yet, these names were discarded, and there was no evidence that Mahathir ever requested additional names under Section 27 of the JAC Act as required.

According to the STF report: “If the prime minister disagreed with the above selection and recommendation of the JAC, pursuant to Section 27 of the JAC Act, he should have requested for more names for each of the vacant judicial positions. There is no evidence before the STF that he had made such a request.

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“Instead, from the report of Bahagian Kabinet, Perlembagaan dan Perhubungan Antara Kerajaan, the names submitted by the prime minister when he tendered his advice to the Yang di-Pertuan Agong under Article 122B were the names discussed and agreed upon between the prime minister and attorney-general.”

Worse, the STF found that no consultation was held with the chief ministers of Sabah and Sarawak before appointing Wong as chief judge of Sabah and Sarawak – a direct violation of Article 122B(3) of the Federal Constitution. This wasn’t merely an administrative oversight, but a constitutional breach.

The same pattern emerged in 2019, when the JAC in its meeting on Jan 17, 2019 initially selected Ahmad for chief justice, Wong for Court of Appeal president and Tengku Maimun Tuan Mat for chief judge of the High Court in Malaya.

After the prime minister requested two additional names, the JAC in its meeting on April 5, 2019 revised its list and put forward these names:

Tengku Maimun and Azahar for chief justice
Azahar and Rohana for Court of Appeal president
Rohana and Azahar for chief judge of the High Court in Malaya

The final names eventually accepted were Tengku Maimun as chief justice (despite being junior), Rohana as Court of Appeal president, and Azahar as chief judge of Malaya.

Again, the irony is thick. Those who now cry foul over possible junior appointments were silent – if not supportive – when Tengku Maimun, a comparatively junior judge at the time, was appointed chief justice. Where was the outrage then?

A convenient crusade for ‘judicial integrity’?

It is even more comical that Mahathir – the very person who subverted the JAC process in 2018 and 2019 – is now positioning himself and his allies as the guardians of judicial independence. Even some lawyers today are openly rooting for a specific candidate to be appointed chief justice, undermining their own calls for neutrality and due process.

This hypocrisy recalls the cautionary words of former chief justice Abdul Hamid Mohamad, who once criticised proposals by Zaid Ibrahim in 2008 (then minister in the Prime Minister’s Department) to create a JAC dominated by practising lawyers. He warned that it would “give these lawyers an unfair advantage besides damaging the integrity of the court. Judges will kneel to the lawyers!”

And now, that prophecy seems to be unfolding before our eyes with segments of the legal fraternity actively lobbying for appointments while masquerading as defenders of institutional integrity.

Enough with the double standards

The selective outrage over potential breaches, while real violations are ignored, exposes a deeper rot in Malaysia’s legal-political culture. This isn’t about upholding the law. It’s about political convenience, power struggles and self-interest, all disguised under the banner of judicial independence.

If the Malaysian Bar, civil society, and opposition leaders are truly serious about reform, they must first reckon with the past violations which they so conveniently ignored. Until then, their cries ring hollow. Let the law be applied consistently, not only when it suits political narratives.

Apandi Ali is a former attorney-general and Federal Court judge.