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The Bar Council appreciates the Government's moves to introduce a system for the appointments and promotion of Judges with a view to strengthening the Judiciary. 

In considering the Government's proposals under the Judicial Appointments Commission Bill 2008 (“JAC Bill”), it is important to bear in mind the underlying purpose and principles behind the setting up of a Judicial Appointments Commission (“JAC”). 

The primary purpose and indeed the whole raison d'être of such a Commission must be to ensure the separation of powers between the Judicial, Executive and Legislative branches of Government. The other important purposes are to ensure transparency at all levels of the appointments process, to have clearly defined criteria of selection and to ensure accountability of those involved in the process. 

These important purposes are underscored by the lessons of our own history, from such events as the 1988 Judicial Crisis and the 2008 Royal Commission on the Video Clip which has taught us that a big part of what ails our current system stems from Executive interference in the judicial appointments process and a lack of transparency and accountability in the process. 

The Bill is clearly seeking to provide some checks which we do not have at all at present. However it is also our view that some provisions of the JAC Bill militate against the fundamental principles we have outlined of the separation of powers and judicial independence and these must be re-considered. 

These are some of the points we wish to make:- 

•  There is presently too much power vested in the Prime Minister. For example, the four “eminent persons” of the JAC are to be appointed by the Prime Minister (albeit in consultation with some stakeholders). More seriously, they may be removed at will by the Prime Minister without him having to give any reason whatsoever. No consultation with the stakeholders is required at this stage. As the Prime Minister appoints 5 members of the JAC (the 4 eminent persons and a judge of the Federal Court), he controls the appointment of the majority of the JAC. The JAC Bill leaves open the possibility that the Prime Minister may appoint politicians and former members of the Executive. The Prime Minister also has sole power to allocate funds and allowances to the JAC. Further, the Prime Minister is not bound to choose a candidate from among those shortlisted by the JAC but may in fact appoint someone else altogether who has not gone through the JAC's vetting process. In other words, the Prime Minister's prerogative under the Constitution remains absolute. 

•  Although the stake holders are consulted on the appointment of the 4 eminent persons, there is a glaring absence of any obligation on the JAC to consult with various concerned or interested third parties (such as the various bar associations and the A-G's Chambers) in conducting the selection process. 

•  The Prime Minister is given unfettered power to amend the provisions of the Act in the first two years after its coming into force albeit essentially to remove difficulties and anomalies. This is an unusual provision that takes the power of legislating away from Parliament. 

We are concerned that some of the Government's proposals appear to legalise and reinforce the control of the Executive over the judicial appointments process. Once it is passed, the power of the Executive over the judicial appointments process will have the force of law. There is also a question that remains as to the process of consultation in the appointments process with the Chief Justice, President of the Court of Appeal, Chief Judge of Malaya and a Chief Judge of Sabah & Sarawak in varying instances provided for in the Constitution. This is untouched in the Constitution and technically, they may individually take a different position from the JAC although they are members of the Commission, as the decisions of the JAC do not appear to be binding on its members. 

Presently, constitutional conventions can be said to guide and curtail the exercise of the Prime Minister's prerogative under the Constitution. With the enactment of the JAC Bill, those conventions, based on democratic tenets such as the rule of law and the separation of powers, may be deemed to have been supplanted by statute. 

The positive aspects of the JAC Bill are that it seeks to establish more consultation and it includes all the four judicial office holders in the entire appointments process. The criteria for selection are further stipulated and cover important aspects that should apply in such a process. 

Ultimately, the JAC must be a process that is completely and utterly independent. It must stand the test of time no matter who the Prime Minister is or the judicial office holders are. It is noted that if there is to be complete independence, a Constitutional amendment may be necessary. If so, we must be prepared to take that step. 

For the present, the JAC Bill with amendments can constitute our first step in reforming the judicial process. The final goal of a fully-fledged JAC must not however be lost. The Bar Council will be studying the Bill further and preparing a comprehensive memorandum in this regard. 

As for the MACC, we are presently studying the extensive provisions and will be issuing our comments shortly. 

 

Dato' Ambiga Sreenevasan 

President 

Malaysian Bar 

11th December 2008