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• 'Include lawyers in commission'
• Bar president: We have always been known to speak without fear or favour

Response to Dato’ Seri Mohamed Nazri Abdul Aziz’s interview on the Judicial Appointments Commission (JAC) in the New Straits Times on 3 October 2008

The Bar Council is pleased with the assurance by Dato’ Seri Mohamed Nazri Abdul Aziz that the agenda for judicial reform will progress and will be discussed with the Bar Council.

There are a few points that need clarification, however, and we believe the public must understand the rationale of the composition of the JAC proposed by the Malaysian Bar.

It must be appreciated that apart from the aim of taking the appointments and promotions of judges away from decision-making by one person in the Judiciary, it is also important to ensure that there is no Executive interference in the process. The other danger that must be addressed relates to the situations that emerged in the Lingam Tape Inquiry that certain groups or individuals could influence judicial appointments. The scope and operation of a JAC in Malaysia must be founded on the principle of separation of powers and greater transparency at all levels of the appointments process. The composition of the JAC must also reflect a fair representation of the various stakeholders in the judicial system.

The Malaysian Bar gave due consideration to all these factors in making its recommendations on the structure and composition of a JAC.

The proposal to include the Presidents of the Malaysian Bar and the Law Associations of Sabah and Sarawak is entirely in accordance with the Beijing Statement and the Latimer House Principles which are respected and authoritative guides in the Asia-Pacific and the Commonwealth, respectively, on issues relating to the administration of justice. Both these documents recommend or encourage the inclusion of the judiciary, the legal profession and civil society in the composition of the JAC.

Practising advocates and solicitors are well-placed to understand what is required and desired of a judge from the perspective of a practitioner and can give valuable input on the suitability of candidates for judicial appointment or promotion.

The Bar has always been known to speak without fear or favour and in the public interest. Our charter requires us to do so. The Bar’s inclusion on the JAC will ensure that the views of the legal profession and the public will be put forward fearlessly. Furthermore, the President of the Malaysian Bar has a fixed tenure of two years, thus ensuring a continuous change, which provides a further safeguard.

As for the argument that there is a “conflict of interest” if a lawyer were to sit on the JAC, we disagree. His Majesty’s judges are obliged to no one and are guided only by their oaths of office and their consciences. To suggest that they may be at all influenced by the presence of lawyers on the JAC, is a disservice to their independence and integrity. They are not beholden to any appointing authority, not even the Prime Minister who presently recommends their appointment.

On the JAC being only for judges who are to be newly appointed, we disagree with this proposal. Much of the unhappiness over the years has been over the utter abuse of the promotions process that is perceived to operate on patronage. It is imperative that both the appointments and the promotions processes are entrusted to the JAC.

It is the Bar’s view that a limited prerogative of the Prime Minister may be preserved in respect of the appointment and promotion of judges. There is little point in having a JAC if the Prime Minister is free to reject their recommendations in their entirety. We must remember that such an important body as the JAC must be carefully thought out and must be a model for all time.

Dato’ Ambiga Sreenevasan
President
Malaysian Bar

3 October 2008

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