00:00Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show
00:15where we want you to consider and reconsider what you know of the news of the day. Malaysia
00:20is facing an unprecedented moment in our judiciary. The two highest posts in the judiciary will
00:26become vacant within days of each other. And as at the time of this recording, there is still no
00:33formal announcement of succession. At the same time, the Judicial Appointments Commission is
00:38reportedly under strain with questions raised over allegations of interference. Now what's at stake
00:44here goes beyond the bench. It's about the legitimacy of the system itself. And joining us to discuss his
00:52further is Stephen Thiru, President of the Commonwealth Lawyers Association. Stephen,
00:57thank you so much for being on the show with me today. We are in quite an extraordinary moment.
01:01As I mentioned, the two top judicial posts are set to fall vacant in a matter of days. No formal
01:06announcement of succession as the time of our conversation. Can I ask you how unusual this is
01:13in Malaysia's legal history? And are there concerns that might arise from the fact that there is going
01:20to be a vacuum at the top of the judiciary? Thanks, Melissa. And thank you very much for the invitation
01:26to speak on this very troubling scenario that we have in front of us today, unprecedented, if I may say
01:35so myself. It is not the norm. It is quite usual for us to have a seamless transition, whether it's by way of an
01:44extension on appointment to the top offices, the top four offices of the judiciary. We have a judicial
01:52appointments commission. The judicial appointments commission would have made its recommendations
01:58to the Prime Minister, a decision that it would have communicated to the Prime Minister.
02:04And the Prime Minister is then obliged to communicate that and make his recommendations to the
02:10council of rulers for appointment by the King. So we have a process. And that process is intended
02:18for us not to have the vacuum or a sense of an indefinite vacancy in these two critical positions.
02:27The position of the Chief Justice of the Federal Court and the President of the Court of Appeal are apex
02:33positions. And they are responsible for the two highest courts of the land, the Federal Court and the Court of Appeal.
02:40They exercise both judicial and administrative functions. And in that sense, you can understand how critical
02:47their role is. It is actually quite unthinkable that we have this situation where the positions will be
02:55left waken as we speak upon the retirement of CJ Tengku Maimun and PCA Tan Sri Abang Iskandar.
03:06And the other thing is, we also must bear in mind, the CJ and the PCA are the two most senior
03:15mandatory members of the Judicial Appointments Commission. And without them, the functions of the
03:21JAC will also be hampered. In short, the vacuum that we have leaves the judiciary in a sense of
03:29being leaderless and rudderless. And that is quite unacceptable.
03:34Okay. Stephen, you recently wrote an article and in that you talked about the separation of power and
03:43how it's essential to judiciary legitimacy. Can we explore that? What do we need to do now to safeguard
03:50against the perception or even the reality of the judiciary being compromised?
03:56Now, the system of separation of powers is meant to prevent any form of overreach
04:03by either the executive or the legislature into what is the domain and the province of the judiciary.
04:11The judiciary is an equal partner of the three arms of government, executive, legislature and judiciary.
04:18And there should be no interference in the exercise of judicial functions by the judiciary,
04:24by the executive and legislature. The judiciary is unique because the judiciary, the judges take the
04:29oath to defend the constitution and they exercise judicial power in accordance with the constitution and the law.
04:36They are not answerable to the executive or the legislature. And the judiciary is again in a unique position
04:43because it plays a role of a check and balance on the exercise of executive and legislative powers.
04:49And by that, what I mean is in deciding cases, it curbs the abuse of these powers.
04:57Now, the non-extension of the CJA and the PCA and indeed the inordinate delay that we are seeing now in appointing even their successors
05:07has given a perception that there is executive interference with the appointment process.
05:13That's the public perception. And that the executive interference here is beyond the role
05:19that the executive has under the constitution and the JSC Act. In other words, it is a form of executive overreach.
05:29It is very difficult to now to dispel that perception because that perception also goes to
05:37a further perception, if you like, that the judiciary is being in a sense punished
05:42or there's retribution because it has not decided cases in a particular way which favors or which would find
05:52favor with the powers that be. That's again a perception. And that's why we have come to this
05:57unprecedented position. Now, if you look at and it is difficult to dispel this perception because
06:06you've had stellar judges like Tun Tengku Maimun and PCA Tan Sri Abang Iskandar who have both distinguished
06:16themselves as judges of eminence and who have gained a claim throughout the common law world.
06:24They are in short world class and we should be proud of them. And indeed, we are surprised and in fact
06:33very much upset that they have been so poorly treated that we should now maybe think of hanging our heads
06:42in shame that we would do this to our best. So perhaps to really answer your question, the first step,
06:49given this experience that they've just had or the experience that we're going through,
06:54we should look and reconsider the role of the executive in the appointment process. Should it be a system
07:04where the Judicial Appointments Commission makes the proper recommendation to the Prime Minister
07:12and the executive at large? And much deference is given to that recommendation because it comes
07:18from a group of people that Parliament has put in place to vet and decide who are the appropriate
07:25persons for these appointments. And that deference is only set aside if there are credible, compelling
07:33reasons as to why those recommendations should not go forward. Otherwise, it should follow through.
07:40Perhaps we should look at that. We should look at reforming that appointment process
07:44and to not remove completely but to reduce the role that the executive has at the moment in the
07:52appointment process. Could I explore what you just said about perceptions? Now, in that article that I
08:00cited earlier that you wrote, you, if I may quote you, you said an independent and fearless judiciary means,
08:07and an independent and fearless bar are two twin pillars of the law. Can you talk to me a little bit
08:13about what role the legal profession has in terms of responsibly and credibly speaking out in this
08:20climate where critique could be seen as carrying consequences?
08:26Well, the bar, whether as an institution or as individual lawyers, must always promote, preserve,
08:33and defend the independence of the judiciary. We cannot and must not shy away from that role,
08:39because that's in Athens upholding the rule of law. And the bar, and certainly the Malaysian bar,
08:46speaks up openly and courageously without fear or favour, and without regard to even our own interests.
08:52We speak up and advocate for judicial reform, our concerns for the appointment on the bench,
08:58and all of that is done in good faith. It is not about politicizing the appointment process,
09:04it is not about lobbying for positions, it's about the independence that judiciary being preserved,
09:11protected, and not interfered with in any sense. So I think there's a misconception that when the bar speaks,
09:19that the bar is seeking to speak for any one person or persons, the bar speaks for the institution,
09:26it speaks for the institution being an institution that remains independent, that remains impartial,
09:33that remains in a position where it can discharge the role that it is obliged to discharge under the
09:41constitution. That's what the bar speaks about. And when there is any shortcoming or any failure in that
09:47aspect, we do not keep, we cannot keep quiet, we will speak up.
09:52All right. Steven, you mentioned just now, actually you described the Chief Justice as Stella,
09:59as world-class. Could I ask you how you would describe or characterize her legacy? Chief Justice Tunku Maimun,
10:09in the way that she led the judiciary, how would you describe it to us outside of the legal profession?
10:16Chief Justice Tunku Maimun has been in office since 2019. What we have seen is that she has raised the
10:26profile of the Malaysian judiciary, raised the profile of the Malaysian judiciary as an independent,
10:32competent, and a world-class judiciary. The federal court that she has led has handed down many landmark
10:43positions that have shaped the jurisprudence, the law of the land. As a judge, she's a judge who we all
10:56consider to be one with a deep conviction for what is justice in any given case. And many of my colleagues in the
11:06bar will agree that she has discharged her duties with competence, with skill, and with a degree
11:18that is so acceptable in the way in which justice is discharged in this country,
11:23that she has quite rightly received the public accolades and recognition, not only in Malaysia,
11:29but throughout the world. Now, if I may just stray a bit into my role as the President of the Commonwealth
11:36Lawyers Association, we have had the privilege of having had her as a speaker, a keynote speaker,
11:42in two successive conferences in Goa in 2023 and recently in Malta. And she was in a panel of other
11:51eminent judges from the Commonwealth, senior and experienced judges. And in both sessions, she spoke
11:59about the importance of the independence of the judiciary. And in both sessions, she spoke in terms in which it
12:07carried white acceptance throughout the Commonwealth. And indeed, I recall in Goa, she even received a
12:15standing ovation. If you just permit me, this is what she said in the Malta conference recently in April
12:212025. She said this, and I quote, justice is beyond the political process. An independent judiciary exists
12:30for the primary purpose of doing justice, unimpeded by any external or internal factors
12:37that do not concern the law and the facts. The judiciary is motivated only by the need to uphold
12:43the rule of law. Unquote.
12:47I have goosebumps. Stephen, thank you so much for sharing that with us. I appreciate your time.
12:53Stephen Thiru, President of the Commonwealth Lawyers Association. And we're going to take a
12:59quick break here and consider this. We'll be back with more. Stay tuned.
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