Amend Constitution, JAC Act to protect judicial independence

Summary

• Lawyers say that judicial appointments should be free from executive influence, calling for amendments to the Judicial Appointments Commission (JAC) Act 2009 and the Federal Constitution, as the prime minister’s current powers undermine JAC’s purpose.

• One lawyer says it was best for the executive not to have any role in appointing judges.

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As tensions rise over the possibility of a judicial crisis, lawyers say judicial independence must be preserved by amending the Judicial Appointments Commission (JAC) Act 2009 and the Federal Constitution.

Speaking to Malaysiakini, lawyer Charles Hector Fernandez said it is time for the executive to no longer have their say when it comes to choosing judges.

“JAC was created and their functions were clearly defined - they picked and chose judges, and which judges were elevated - then the prime minister is expected to do as recommended.

“If the prime minister does as recommended, then there may not be an urgency to amend the Federal Constitution, but now, Anwar seems not to be following JAC’s recommendation,” he said.

On July 7, nine government backbenchers voiced concerns over judicial appointments and alleged judicial interference but the Attorney-General’s Chambers downplayed the matter.

The AGC said the prime minister can ignore JAC's recommendations to "protect" the judiciary.

On July 10, Istana Negara said the legal provision on the appointment of judges by the Yang di-Pertuan Agong on the prime minister's advice "clearly reflects the principle of checks and balances".

The palace also warned against politicising the appointment of judges to the superior courts.

‘Depoliticise judiciary’

On that note, lawyer Nizam Bashir said the judiciary must be depoliticised as much as possible.

“The desired effect is that if a judgment is delivered, it should not be shrouded with a perception that it was biased in favour of the appointing party,” he told Malaysiakini.

To avoid such perception, Nizam said it was best for the executive branch not to have any power in the appointment of judges, calling for the JAC Act to be amended to reflect this.

“Whatever the case, the bar for the present administration is higher as they were voted into power on the promises of reforms,” he added.

Under Article 122b of the Federal Constitution, the Yang di-Pertuan Agong appoints judges based on the prime minister’s advice, upon consulting the Conference of Rulers.

Section 5 of the JAC Act also provides the prime minister with the power to appoint five of the commission’s nine members.

JAC still needed

Meanwhile, lawyer Kokila Vaani Vadiveloo said the prime minister’s powers in appointing judges rendered JAC toothless.

However, she maintained that JAC still has its relevance.

“Even though JAC doesn’t have binding power, it still plays a vital role in the system. It helps bring transparency to the appointment process and acts as a filter to ensure only qualified candidates are considered.

“More importantly, it creates a record of how decisions are made.

“If the prime minister chooses to reject certain names, the public and legal community can and should ask why. This kind of accountability helps protect the judiciary from being politicised,” she told Malaysiakini.

Lawyers to march

The Malaysian Bar is set to march on July 14 to demand judicial independence.

Its president Ezri Abdul Wahab said the planned “Walk to Safeguard Judicial Independence” event will see participants hand over a memorandum to the Prime Minister's Office.

Among others, they demand that top judicial vacancies be filled, release minutes of a recent JAC meeting, form a royal commission of inquiry to probe alleged judicial interference, and address overall judicial vacancies.

Concerns arose after Chief Justice Tengku Maimun Tuan Mat and Court of Appeal president Abang Iskandar Abang Hashim retired earlier this month - with no successors named.

Later, Free Malaysia Today reported that Acting Chief Judge of Malaya Hasnah Hashim had summoned JAC for an urgent meeting.

Defend the Judiciary Secretariat expressed alarm over the matter, claiming it violates Section 13 of the JAC Act 2009, which requires a 10-day notice for the commission to meet.

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