Malaysian Bar, an ‘unregistered political party’
Gopal Raj Kumar, Malaysia Outlook
As a starting point, the Malaysian Bar has no lawful part to play in the appointment or the removal of judges. They have no mandate in this regard as far as the Constitution is concerned.
It is up to parliament and parliament alone as to how the appointment and removal of judges is made.
To that extent parliament’s position whether through the office of the prime minister or a collective decision of cabinet is mandated by the Constitution.
The Malaysian Bar has an intrinsic role to play in the appointment of judges to the extent that judges are appointed from their ranks.
If there is dissatisfaction about the quality of appointments to the bench, then it is incumbent on the Bar to ensure the continued improvement in the quality of their members whilst they serve at the Bar.
The recent upheavals and treacherous conduct of prominent members of the Malaysian Bar including past presidents and retired judges engaging in partisan political activities, bringing government and the courts into disrepute with their comments on and off the course, is but one example of where the lines are often blurred on the question of Constitutional interpretation and judicial independence.
The Constitution does not proscribe the extension of the term of a Chief Justice or any other judge or limit their tenure of office to time alone.
The prohibition set out in the Constitution as some lawyers argue is the case is in fact nothing but a limit parliament has set which for the time being is allocated to the term a judge may sit on the bench.
It says nothing explicit that prohibits extension of tenure.
The present argument is about tenure and term. If a government (parliament) has the power to reduce or limit the term of judicial appointments, it could also if not expressly stated, then by inference extend, vary and amend that same term.
The Constitution does not imply or suggest anywhere that parliament may not re appoint a judge or extend his term in office beyond retirement age.
After all it was not so long ago that judges were appointed for life (on good behavior). Good behavior remains a condition of holding judicial office.
It means a judge’s term in office may be curtailed or determined on bad behavior. Parliaments in Malaysia, Australia and the UK have long since changed that term of life by amending their Constitutions.
The current imbroglio over judicial re appointment at the end of their term is a manufactured Constitutional ‘crisis’ engineered by elements within the Malaysian Bar.
They provide no convincing legal, Constitutional or rational argument or authority for their proposition.
All that they do is to invite the inference that they are steadfastly and doctrinally anti-government regardless of whether or not what government does is productive or beneficial to a particular situation.
Clearly that’s unsatisfactory of their conduct. This argument is about judicial appointments.
More specifically this is about judicial re appointment or extension of tenure of the Chief Justice and Court of Appeal President.
