AGC Clarifies Judicial Appointment Process Is Constitutionally Prescribed

KUALA LUMPUR, July 8 (Bernama) -- The Attorney General’s Chambers (AGC) today clarified that the timeline and process for finalising judicial appointments, particularly for key positions such as the Chief Justice and the President of the Court of Appeal, are governed by procedures set out in the Federal Constitution.

In a statement, the AGC emphasised that the process must take into account all relevant considerations, including the need for consultation and the exercise of discretionary powers within the constitutional framework.

The AGC further stated that it had been informed that the King had consented to the appointment of several judges to the High Court and Court of Appeal last month. These appointments, however, remain subject to the completion of certain formalities.

“Such appointments must be carried out in a proper and orderly manner. Allegations of delay or inaction in responding to earlier nominations must be viewed in the context of the provisions of the Federal Constitution.

“The Prime Minister cannot be regarded merely as a conduit for recommendations from any party. Rather, he bears a constitutional duty to advise the King in a manner that upholds the independence, credibility and integrity of the judiciary,” the AGC said.

The AGC’s statement referred to the media release by Pandan member of parliament, Datuk Seri Rafizi Ramli, and several other MPs, who called for the establishment of a Commission of Inquiry and a Parliamentary Select Committee to examine judicial appointments, including to the highest offices within the judiciary.

The AGC acknowledged the importance of maintaining public confidence in the judicial selection process and reaffirmed the principle of judicial independence as guaranteed under the Federal Constitution.

“Appointments to the superior courts are provided for under Article 122B of the Federal Constitution, which stipulates that judges shall be appointed by the Yang di-Pertuan Agong (King) on the advice of the Prime Minister, after consultation with the Conference of Rulers.

“The Judicial Appointments Commission Act 2009 [Act 695] governs the process for identifying and recommending judicial candidates. However, the constitutional authority to advise the King rests exclusively with the Prime Minister,” the AGC stated.

Concerning the assertion that a meeting of the Judicial Appointments Commission (JAC) was convened without adequate notice under Section 13(2) of Act 695, the AGC clarified that the JAC is empowered to regulate its own procedures.

 “In urgent circumstances, it is generally permissible for an authority to proceed with a meeting on short notice, provided there is unanimous agreement among its members. Procedural matters of this nature do not, in themselves, invalidate the legality of the JAC deliberations unless there is clear evidence of mala fide or actual prejudice,” the AGC said.

The AGC further emphasised that the allegation involving a Federal Court judge purportedly influencing judicial decisions or the reassignment of judges is a matter of serious concern.

“However, deliberations of the JAC are classified and protected by law. Such allegations cannot be equated with proven misconduct or said to compromise judicial independence. At this juncture, they remain premature and purely speculative,” the statement continued.

The AGC also rejected comparisons to the 2007 VK Lingam case, deeming them unwarranted at this stage.

“That case involved clear evidence of interference in the judicial appointment process, which led to the establishment of a Royal Commission of Inquiry. The current situation is materially different, as the allegations raised pertain solely to procedural irregularities and unsubstantiated assumptions unsupported by credible evidence,” the statement read.

The AGC stated that while Parliament retains the authority to examine institutional governance through the establishment of its committees, matters concerning appointments under the Federal Constitution must be addressed with due prudence to avoid politicising the exercise of constitutional powers by the King and the Prime Minister.

“Both institutions are constitutionally mandated to exercise their respective powers independently. This Chamber will continue to advise the Government on the administration of justice where there is credible and substantiated evidence to warrant such advice. 

“In the absence of such evidence, all parties vested with legal authority must be allowed to discharge their responsibilities without undue pressure, speculation or public campaigns,” the AGC emphasised.

The statement further noted that the present circumstances should be monitored carefully, and all parties are urged to refrain from hasty actions. Discrepancies in timing or procedure concerning judicial appointments do not, in themselves, constitute a constitutional crisis.

“The appointment process must adhere strictly to lawful procedures, with full respect for the roles of constitutional institutions and the provisions of the Federal Constitution.

“All parties bear a continuing duty to uphold the rule of law and the principle of separation of powers. This duty is best fulfilled by strengthening institutional maturity, rather than through baseless speculation or conjecture,” the AGC concluded.

--BERNAMA