The Malaysian Bar is heartened by the proposed idea announced by the Yang Dipertuan Besar of Negeri Sembilan, Tuanku Muhriz Ibni Almarhum Tuanku Munawir (“Tuanku Muhriz”), Chairman of the 260th meeting of the Conference of Rulers, that five out of nine members of the Judicial Appointments Committee (“JAC”) no longer be appointed by the Prime Minister (“PM”) so that its composition does not carry the interests of any party.1 Tuanku Muhriz proposed this at his opening speech on the second day of the meeting at Istana Negara on 30 November 2022.
In context, the Malaysian Bar had since 2018 submitted a comprehensive paper to the Institutional Reforms Committee (“IRC”) established by the-then government of the day, upon invitation, to propose ideas to strengthen the democratic institutions within our country. The Malaysian Bar submitted more than 60 working papers to initiate progress in working towards a matured and truly democratic nation. One of the papers that the Malaysian Bar advocated to the IRC was a review of the Judicial Appointments Commission Act 2009 (“JAC Act”). This initiative has had a history even prior to 2018, as the Malaysian Bar has always had concerns relating to the process of the appointment of judges, which should always be free from the influence of the Executive, because the underlying purpose behind the establishment of a JAC is to maintain the separation between the Legislative, Judiciary, and Executive to ensure transparency at all levels.
Over and above these criteria, the Malaysian Bar has continuously advocated that the overall composition of the JAC should reflect diversity and inclusivity, and as far as possible, mirror the demography of the general population in every aspect. This means an inclusion of the wide spectrum of Malaysia’s rich multicultural and multireligious population, and a reflection of a good balance of the genders and professional practice areas. If the composition of the JAC is reflective of our Malaysian society, it would enhance public confidence and acceptance of the decisions made by the Judiciary because these judges would essentially be representing and making decisions affecting the lives of all Malaysians.
The Malaysian Bar has consistently called for the decentralisation of the power of the Executive in key aspects of the judicial appointment process. An example of the power of the Executive in such appointments is reflected in section 5 of the JAC Act which stipulates that five out of the nine members of the JAC — namely a Federal Court Judge and four eminent persons — are appointed by the PM. The selection of eminent persons leaves open the possibility that former members of the Executive and public service, members of Parliament and other politicians may sit on the JAC, and the Malaysian Bar reiterates that such possibility of appointments ought to be expressly excluded.
In recent practice, whilst the process of consultation is carried out, as provided for under section 5(f) of the JAC Act, the express and written views or objections of the Bar Council on the suitability of candidates has never been translated into actuality. The views sought therefore appear to be no more than an exercise of dressing rather than that of substance.
As such, the current call for JAC reforms is timely indeed. The Malaysian Bar takes this opportunity to renew our call for amendments to the JAC Act, where the review of provisions on representation of the stakeholders should be done by legal practitioners and the Attorney General, and that eminent persons under section 5 of the JAC Act be selected through a set of criteria suitable for Malaysians across divides, for the good of the Judiciary and our country.
The Malaysian Bar reiterates yet again that the powers of the PM in the judicial selection and appointment process under the JAC Act be removed, so as to ensure independence of the JAC to run its own affairs, and that a Parliamentary Select Committee on key matters be possibly involved to provide check and balance. These reforms would be necessary to uphold the independence of the Judiciary.
It is therefore imperative that the government of the day that says it is resolute in good governance, continues the way forward by having the political will to make the requisite amendments to the JAC Act and Article 122B of the Federal Constitution to establish an independent judiciary, for the sake of a proper democratic system within our country.
The Malaysian Bar stands ready to assist in realising this initiative at all times.
Karen Cheah Yee Lynn
1 Dec 2022
1 “Conference of Rulers proposes PM ceases appointing JAC members”, New Straits Times, 30 November 2022.