Judicial Appointments Commission (JAC) – The debate

Retired Court of Appeal judge - Datuk Shaikh Daud Ismail.

Retired Chief Justice Tun Abdul Hamid Mohamad.

Bar Council President Datuk Ambiga Sreenevasan.

The government officials familiar with the JAC Bill shed some more light on the provisions of the Bill (Bernama).

Problems Areas:
1. Power concentrated in the hands of the Prime Minister (PM).
2. JAC Report goes to the PM
3. JAC Report should go directly to the KING
4. JAC members - the KING should have the power to hire and fire(The PM can advice).
5. The Bill is not clear on the promotion of judges but focuses instead on their Initial appointment.

1 to 5 above will stop JAC being more transparent and there would be independence of the judiciary.

The officials familiar with the JAC said the eminent persons must be appointed by the PM or else it could be ultra vires to the Constitution which confers on the PM prerogative over judicial recommendations to the Council of Rulers.

However, in making these appointments, the PM must consult with many stakeholders including the Bar Council of Malaysia and other relevant bodies as stated in Section 5(1). The officials said that this provision explicitly shows good faith and fair intentions to appoint the eminent persons, who must be very accomplished and widely respected in order to give credibility to the JAC. Politicians, ex-politicians and ex-members of the Executive are not exempt from such qualities, for example, former Deputy Prime Minister Tun Musa Hitam.

6. The appointments of the Chief Justice and president of the Appeals Court is concerned - problems would arise as among members of the commission, all the Judges will have to abstain from participating in the proceedings for they have interest, it might be very difficult to meet the minimum quorum.
7. It also means when it comes to appointing the CJ, the meeting will only be attended by a federal court judge and four non-judges who are appointed by the Prime Minister.

Section 13(5) of the JAC Bill states that "if the quorum of seven is not present due to members being disqualified (e.g. for being a candidate under consideration), then the quorum shall not be less than five."

8. The primary purpose and indeed the whole raison d'etre of such a commission must be to ensure the separation of powers between the Judicial, Executive and Legislative branches of government.

JAC - independence characteristics.

Firstly, is the character and conduct of its members, four of whom are the nation's top judges and five of whom are eminent persons which are appointed by the PM after consultation with several stakeholders including the Bar Council of Malaysia as stated in Section 5(1).

Its independence also lies on the basis of its selections -- a clear and transparent criteria which includes integrity, competence, experience, good moral character, decisiveness, ability to make timely judgments, good legal writing skills, industriousness, ability to manage cases well, and physical and mental health, as stated in Section 23(2) of the Bill.

The officials said that above all, the short title as well as an entire provision, namely Section 2, of the JAC Bill, explicitly mentioned the need for the PM to uphold the independence of the judiciary and these provisions clearly showed the spirit of the Bill vis-a-vis judicial independence within the boundaries of the Federal Constitution.

Referring to suggestions that the JAC Bill does not make the judicial appointments more transparent, the officials said, the candidates can only be considered if they fulfilled a clear list of criteria, which included the aspects mentioned as stated in Section 23(2) of the Bill.

9. Once it is passed, the power of the Executive over the judicial appointment process will have the force of law.

The "power of the executive" has always had the force of law i.e. Article 122B of the Federal Constitution where the PM recommends judicial appointments to the Yang Di-Pertuan Agong and the Conference of Rulers.

10. The Bar Council's contention that the PM would have unfettered powers to amend the provisions of the Act in the first two years and that it was an unusual provision that would take the power of legislating away from Parliament, the officials said the PM may, to remove difficulties or anomalies, make modifications to the Act as stated in Section 37(1).

Section 37(1): This is a general and usual provision, put in several legislation establishing new public entities, to provide flexibility in rectifying problems of administrative implementation, for example, the number of meetings that must be held, period of notification and so on. It is not intended to give 'unfettered powers' to change the substantive provisions of the Act.

11. The decisions of JAC do not appear to be binding on its members

In fact, the JAC only facilitates making this power more structured and transparent. All countries, including developed countries, have executive involvement in the judicial appointments process,

Good Points:

1. The JAC the right to form consultative committees to help it carry out its duties.

2. The positive aspects of the Bill were that it sought to establish more consultations and it included all the four judicial office holders in the entire appointment process.
3. Ultimately, JAC must be a process that is completely independent. This move could constitute the country's first step in reforming the judicial process while the final goal of a full-fledged JAC

“The success or failure of the commission would depend entirely on the human factor. You can have the best of laws but if they were no right people interpreting them, then they would fall flat," former High Court Judge Datuk Syed Ahmad Idid.

Missing Points:

1. A committee to discuss complaints filed by the public on the conduct of judges, is needed.

On allegations that the JAC does not have the role of receiving and investigating complaints from public on the conduct of judges, the officials said that is not the function of the JAC as it only selects names for judicial appointments.

Receiving and investigating complaints on the conduct of judges lies with the Anti-Corruption Agency (on corruption-related complaints) and the judiciary (on disciplinary-related complaints),