THERE has been growing public discussion about the vacant chief justice position following the mandatory retirement of Tengku Maimun Tuan Mat. Much of
the attention has focused on the delay in appointing her successor.

Some have gone so far as to call this delay a “judiciary crisis”.

Others speculate that her non-extension was orchestrated to pave the way for a preferred junior judge to take over.

However, it is worth remembering that we have seen a similar situation before. When Richard Malanjum retired as chief justice on April 12, 2019, the position remained unoccupied for 19 days until Tengku Maimun was appointed on May 2. As of July 10, the chief justice post will have been vacant for nine days.

It is also important to note that Tengku Maimun was relatively junior, having served just six months as a Federal Court judge, when she was appointed chief justice.

In short, a brief vacancy in the chief justice’s office is not unusual, nor is it a sign of crisis. It was not considered one in 2019 and it need not be seen as one now. This view is shared by renowned law professor and constitutional expert Shad Saleem Faruqi. And the Attorney-General’s Chambers yesterday released a statement that says likewise.

Power and accountability

At the heart of this public discussion is a concern about the independence of
the judiciary and its role in holding the executive accountable.

Some worry that the judiciary is slowly losing its position as an institution free from political interference.

These concerns are understandable but they often overlook the fact that the executive, legislative and judiciary branches are not fully independent from each other. They are actually interdependent.

Take the current case as an example – according to Article 122B of the Federal Constitution, the chief justice is appointed by the Yang di-Pertuan Agong based on the advice of the prime minister, after consultation with the Conference of Rulers.

This means the head of the judiciary is ultimately appointed through a process involving the executive head – the prime minister. The Judicial Appointments Commission (JAC) merely recommends judiciary candidates.

While the judiciary must remain impartial, its top appointments are still influenced by political leadership, which derives its legitimacy from the legislature. Absolute separation, in practice, does not exist.

United Kingdom JAC

While Malaysia has its own JAC, some suggest that we should adopt the UK’s version of JAC as a way to ensure a more independent judiciary. But this model is not without flaws.

While the UK JAC conducts an open selection process, final appointments still require approval from the Lord Chancellor, who is a government minister answering to the prime minister. There have even been instances where the Lord Chancellor rejected candidates recommended by the JAC.

It goes further. A British judge once took the JAC to court, claiming the recruitment process was “opaque and unfair”. In fact, concerns have been raised that the JAC may have become too insular.

The Judicial Support Network, a body formed to address bullying and harassment within the judiciary, called on the European Court of Human Rights to investigate claims that the judiciary “appoints and replicates itself without oversight of government or other independent authority subject to democratic control”.

In other words, the UK JAC faces serious criticism for lacking proper checks and balances precisely because of its independence.

Interdependence of the three branches of government is not only inevitable but also deemed necessary to maintain tripartite accountability. Therefore, I suggest that it is more constructive to reframe the discourse
of institutional reform not by their “separation” but by interdependence.

Way forward

For a democratic government to function optimally, the three branches of government are inevitably interdependent.

Rather than focusing solely on their “separation”, it may be more constructive to reframe discussions on institutional reform around how these branches relate to and rely on each other – that is, their “interdependence”.

This framework allows for more realistic and effective conversations about strengthening democratic checks and balances.

At the heart of this interdependent relationship is the way the branches of government interact with one another.

Rather than keeping them isolated, a formal inter-branch chamber should be established for open dialogue between the powers, one where the considerations behind key decisions, such as judicial appointments, are made available as public record.

The final decision must still follow the constitutional process but making the reasoning transparent through the publication of the inter-branch chamber’s records, allowing the public and the legal community to assess for themselves whether the appointment is fair and justified.

This approach will not only honour the Constitution but also reinforce accountability, particularly on the part of the executive. After all, in a democracy, ultimate power rests with the people whose constitutional rights are to evaluate, support or reject the actions and deliberations of those in power through their votes.

Joshua Woo Sze Zeng is the state assemblyman for Pulau Tikus, Penang. Comments: letters@thesundaily.com