M'sian Bar welcomes Malay rulers' judicial appointments committee proposal

The Malaysian Bar has applauded the Conference of Rulers’ proposal for the Judicial Appointments Committee (JAC) to be free of influence from the prime minister.

Its president Karen Cheah said the idea by the Yang di-Pertuan Besar of Negeri Sembilan Tuanku Muhriz Tuanku Munawir for the removal of the prime minister’s power to appoint JAC members would ensure that its composition does not carry the interests of any party.

In a statement today, Cheah said the Malaysian Bar had previously submitted more than 60 working papers to the Institutional Reforms Committee (IRC) in 2018 to initiate progress in working towards a matured and truly democratic nation.

One of the papers that the Malaysian Bar advocated, she said, was a review of the JAC Commission Act 2009.

“This initiative has 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,” Cheah added.

The JAC is responsible for appointing judges to the judiciary. The prime minister appoints five of the committee members, while the remaining four slots are filled by sitting judges.

Tuanku Muhriz who chaired the 260th Conference of Rulers yesterday said in order to ensure that the JAC is free to carry out its responsibilities, the five slots to be appointed by the prime minister should instead be entrusted to other institutions such as the Bar Council, Sabah Law Society, Advocates Association of Sarawak and Parliament's Select Committee.

Better representation

If the composition of the JAC is reflective of Malaysian society, Cheah said that it would enhance public confidence and acceptance of the decisions made by the judiciary because the judges would essentially be representing and making decisions affecting the lives of all Malaysians.

She stressed that the Bar has consistently called for the decentralisation of executive power in key aspects of the judicial appointment process.

“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.”

While the process of appointing judges requires consultation, the written views or objections of the Bar regarding the sustainability of candidates have never been translated into actuality.

“The views sought therefore appear to be no more than an exercise of dressing rather than that of substance,” Cheah said.

Therefore, she said the call for JAC reforms is timely, adding that the Bar reiterates its calls for amendments to the JAC Act and Article 122B of the federal constitution to establish an independent judiciary.

“The Malaysian Bar reiterates yet again that the powers of the prime minister in the judicial selection and appointment process under the JAC Act be removed, so as to ensure the 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,” she added.

‘Walk the talk’

Despite welcoming the move, Lawyers for Liberty director Zaid Malek, however, commented that removing the prime minister’s powers to appoint JAC members will not ensure judicial independence and separation of powers.

“Under Article 122B of the Constitution, the PM still retains the ultimate power to advise the king on whom to appoint to the Federal Court, Court of Appeal and High Courts.

“In short, the PM need not accept the recommendations of the JAC. This great influence of the executive over the judiciary must be entirely removed to ensure judicial independence and integrity.

“The new coalition government has the two-thirds majority in the Dewan Rakyat required to amend Article 122B of the Constitution to entirely remove the PM’s role in appointing judges and allow the JAC to advise the king directly,” he said.

Zaid similarly called on prime minister Anwar Ibrahim to “walk the talk” on his pledges for reforms, upholding democracy and rule of law.

“We urge Anwar and the new government to table a bill to amend Article 122B of the Constitution as well as the JAC Act 2009 at the first sitting of the new Parliament commencing on Dec 19.

“There can be no reason for a ‘reformist’ prime minister to delay these crucial measures,” he added.

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