Bersih lawyers join judicial appointments law challenge

Summary

• Bersih emphasises the importance of the "Syed Amir Syakib Arsalan Syed Ibrahim v Government of Malaysia and Judicial Appointments Commission" case.

• The NGO says the case, which sees a lawyer challenging the constitutionality of the Judicial Appointments Commission Act 2009, is aligned with its objectives.

• It thanks the court for allowing its lawyers to serve as "amicus curiae".

The High Court in Kuala Lumpur today allowed two Bersih lawyers to serve as "amicus curiae" (impartial observing lawyers with leave to argue) in the judicial review challenging the Judicial Appointments Commission (JAC) Act 2009.

Bersih, in a statement, thanked judge Amarjeet Singh for the decision to allow Ramkarpal Singh and Kuhan Manokaran’s application, noting the importance of the case as it aligns with the NGO's objectives.

"Through this space, Bersih will bring the voice of the people to improve the judicial independence system in line with the doctrine of separation of powers," Bersih said.

Bersih cited a report it prepared in 2021, which contains recommendations for reforming free and fair judicial appointments.

The document, titled "Safeguarding Judicial Independence: Appointment, Promotion, and Removal of Judges in Malaysia", is available on its website.

In May, lawyer Syed Amir Syakib Arsalan Syed Ibrahim filed a judicial review arguing that the JAC Act is unconstitutional.

He is seeking a declaration from the Kuala Lumpur High Court that the powers granted to the JAC go against the constitution, specifically Article 122B, which outlines the process for appointing judges to the Federal Court, Court of Appeal, and High Courts.

He reportedly argued that the JAC Act interferes with the constitutional process and judicial independence by allowing the prime minister and government officials to influence judicial appointments, which is against international standards for an independent judiciary.

He is also seeking a court order compelling the prime minister and government to follow the proper judicial appointment process without interference from the JAC.

Pending a resolution of the case, he urged the court to grant an interim stay on all judicial appointments made under the JAC Act 2009 until the court fully resolves the issue.

In response, Prime Minister Anwar Ibrahim reaffirmed his administration’s efforts to reform judicial appointments despite the legal challenge.

This came as nine out of the 14 top judges are reportedly scheduled for mandatory retirement this year.

Leading the list is Chief Justice Tengku Maimun Tuan Mat, who will turn 66 next month.

Also reported to be retiring are Court of Appeal president Abang Iskandar Abang Hashim and Chief Judge of Malaya Hasnah Hashim.

Power to appoint

Last December, Universiti Malaya constitutional law professor Shad Saleem Faruqi said the current system does not bind the prime minister to the chief justice or the JAC’s advice on judicial appointments.

He said the chief justice, not the prime minister, should have the power to appoint members to the JAC.

“Despite the many improvements ushered in by the JAC Act, the prime minister retains absolute power to select the names to be sent to the Yang di-Pertuan Agong.

“In fact, he has the power to reject the names and call for new names: in the case of high courts, three new names; in other cases, two new names.

“So, he has virtually absolute power to select the names to be sent to the Agong and the Conference of Rulers.

“The prime minister’s power of rejecting the chief justice and the commission’s recommendations renders the lengthy process of selection by the JAC a waste of time and resources,” he said.

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