My article for the Putik Lada column published in The Star on 19 December 2008
:“THE Prime Minister must uphold the continued independence of the judiciary and must have regard to the need to defend that independence …”
These initial words from the Judicial Appointments Commission Bill 2008 serve as a guarantee of the continued independence of the judiciary and imposes a duty on the Prime Minister to defend that independence. The tabling of this Bill in Parliament is an acknowledgment that for too long, the present system of appointing and promoting judges is inadequate and open to abuse.
However, the question then arises whether the Bill goes far enough in ensuring the protection of the independence of the Judiciary.
The Bill proposes to establish a nine-person Judicial Appointments Commission (JAC) to select and then recommend to the Prime Minister individuals to be appointed as judges to the High Court in Malaya and in Sabah and Sarawak, the Court of Appeal and the Federal Court.
This will also include the appointment to the four highest judicial offices – Chief Justice of the Federal Court, President of the Court of Appeal, Chief Judge of the High Court in Malaya and Chief Judge of the High Court in Sabah and Sarawak.
While not explicitly stated, it also appears that the JAC will similarly select and make recommendations to the Prime Minister on the promotion of judges.
The Bill further sets out the selection criteria that must be taken into account by the JAC in selecting the candidates, for example, integrity, competency and experience, decisiveness, ability to make timely judgments and good legal writing skills.
In another move to be lauded, the Bill also disqualifies a serving judge or Judicial Commissioner from being appointed if he or she has three or more pending judgments.
Some degree of transparency is ensured through provisions dealing with the disclosure of interest by the members of the JAC and disqualification from participating in the discussion or deliberation of the JAC.
The JAC must prepare an annual report of all its activities to be submitted to Parliament, although there is no clear definition as to the exact detail of the activities to be reported to Parliament.
The Bill, however, is silent on the obligation of the Prime Minister to consider the recommendations made by the JAC. It provides that where the Prime Minister has accepted any of the persons recommended by the JAC, he may proceed to tender his advice in accordance with the constitutional procedure for the appointment of judges set out in Article 122B of the Federal Constitution.
There is no provision dealing with a situation where the Prime Minister rejects the JAC’s recommendation.
As the Bill currently stands, there is no need for the Prime Minister to provide any explanation if he rejects the recommendations of the JAC.
Another criticism of the Bill is that it gives the Prime Minister a great deal of influence over the JAC. The Prime Minister appoints five of its nine members, namely, a Federal Court judge and four eminent persons.
While these four eminent persons cannot be members of the Executive or other public service, and there is consultation with the various stakeholders, it is the Prime Minister who ultimately appoints them; and he may also revoke their appointment at any time without furnishing any reason.
A further degree of influence is that the Prime Minister determines the allowances to be paid to the members of the JAC.
The Prime Minister is also given the power to make modifications to the Act in the first two years of its coming into force. There is little restriction on the exercise of such a power except that it is meant to be for the removal of difficulties and prevention of anomalies in the implementation of the Act.
Finally, questions remain on whether the proposed JAC framework would be constitutional. Article 122B of the Federal Constitution requires the Prime Minister to consult various parties, including consulting with the Conference of Rulers, before his advice is tendered to the King. It clearly does not provide for the JAC to provide any input in that process.
At best, the JAC may sit uncomfortably with Article 122B since it may be argued that the Prime Minister is not confined to only consulting with these parties. A constitutional amendment may be required to further codify the JAC process of the appointment and promotion of judges.
The Bill is a move in the right direction in safeguarding the independence of the Judiciary. However, this does not detract from the fact that further discussion is required and that certain changes have to be implemented before it is passed.
The present system vests the Prime Minister with the absolute discretion to appoint and promote judges.
The Bill, in its present form, creates a veneer of independence in this appointment and promotion process but in the end, the ultimate decision still rests with the Prime Minister.
There is a risk that the entire JAC framework, with its selection process and selection criteria, will be rendered redundant since there is no obligation for the Prime Minister to accept any of the JAC’s recommendations.
Also, question marks remain in relation to the constitutionality of the Bill. In upholding the independence of the Judiciary, the Bill explicitly imposes a duty on the Prime Minister to have regard to the need for public interest to be properly represented.
The public interest is not served through the entrenchment and codification of the power which is currently wielded by the Executive arm of the Government over the judicial appointments process.
Now that the Bill has been passed despite the misgivings and issues highlighted above, the legal fraternity can only hope for the best, and will no doubt follow its implementation closely.
The writer is a member of the Bar Council’s National Young Lawyers Committee (NYLC). Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc