The following is a response from a source in the Prime Minister's Department on the many negative reactions against the proposed Judicial Appointments Commission (JAC) Bill and the Malaysian Commission for Anti-Corruption (MCAC) Bill.

The reactions were published widely in the local media and blogs since the prime minister presented the two new bills in Parliament this week.

1) Tun Hamid (recently retired CJ Tun Abdul Hamid Mohamad) stated that the meeting quorum of 7 commissioners will not be met when considering top posts particularly CJ and the President of the Court of Appeal, as most of the candidates for that post will be members of the Commission and thus must abstain from the selection process. (Source: Bernama )

This scenario was considered; thus Section 13(5) states that if the quorum of 7 is not present due to members being disqualified (e.g. for being a candidate under consideration), then the quorum shall not be less than five.

2) Tun Hamid stated that when it comes to the consideration of candidates for the top post (CJ), the selection meeting will likely only consist of a Federal Court judge and four non-judges as the other commissioners will likely be candidates themselves. "Is this the real purpose of the Bill" asks Tun Hamid. (Source: Bernama )

A selection meeting for the selection of names for the post of CJ will most likely consist of the CJ, a Chief Judge of the High Court, a Federal Court judge and four eminent persons. These individuals must be guided by a clear criteria which includes integrity, competence, experience, good moral character, decisiveness, ability to make timely judgments, good legal writing skills, industriousness, ability to manage cases well, and physical & mental health, as stated in Section 23(2) of the Bill. The "real purpose of the Bill" is to enable the commissioners, who themselves must be eminent and intelligent, to make a decision based on such criteria.

3) The Bar Council believes that the prime minister has too much power in the JAC, as the eminent persons are to be appointed by the prime minister. This leaves open the possibility that the prime minister might appoint politicians or former members of the Executive (Source: The Star )

The eminent persons must be appointed by the prime minister or it could be ultra vires to the Constitution which confers on the prime minister prerogative over judicial recommendations to the Council of Rulers. However, in making these appointments, the prime minister must consult with many stakeholders including the Bar Council of Malaysia and other relevant bodies as stated in Section 5(1). This provision explicitly shows good faith and fair intentions to appoint the eminent persons, who must be very accomplished and widely respected in order to give credibility to the JAC. Politicians, ex-politicians and ex-members of the Executive are not exempt from such qualities e.g. Tun Musa Hitam.

4) The Bar Council believes that the prime minister would have unfettered powers to amend the provisions of the Act in the first two years. "This is an unusual provision that takes the power of legislating away from Parliament" (Source: The Star )

The prime minister may, to remove difficulties or anomalies, make modifications to the Act as stated in Section 37(1). This is a general and usual provision, put in several legislations establishing new public entities, to provide flexibility in rectifying problems of administrative implementation e.g. number of meetings that must be held, period of notification etc. It is not intended to give "unfettered powers" to change the substantive provisions of the Act. Such changes must be tabled as an amendment to the Act in Parliament. This is the normal interpretation of the "Prevention of difficulties or anomalies" provision i.e. it does not take away the power of legislating from Parliament.

4) The Bar Council believes that the JAC should be completely independent, and ensure the separation of powers between the Judiciary, Executive and Legislature (Source: The Star )

The JAC's independence relies on (i) the character and conduct of its members (4 of whom are the nation's top judges and 5 of whom are eminent persons which are appointed by the prime minister after consultation with several stakeholders including the Bar Council of Malaysia as stated in Section 5(1)) and (ii) the basis of its selections (a clear and transparent criteria which includes integrity, competence, experience, good moral character, decisiveness, ability to make timely judgments, good legal writing skills, industriousness, ability to manage cases well, and physical & mental health, as stated in Section 23(2) of the Bill). Above all, the short title as well as an entire provision (Section 2) of the JAC Bill explicitly mention the need for the prime minister to uphold the independence of the judiciary. These provisions clearly show the spirit of the Bill vis-à-vis judicial independence within the boundaries of the Federal Constitution.

5) The Bill does not make the judicial appointments more transparent. (Source: Blogs)

The candidates can only be considered if they fulfil a clear criteria which includes the aspects mentioned above, this is stated in Section 23(2) of the Bill. The Commission must submit a report to the prime minister stating who has been recommended for the appointment to the office concerned, the reasons for such a selection and other information the Commission deems necessary (Section 26). The Commission must also submit an annual report to Parliament every year (Section 31). These provisions and others have been put in to increase and ensure transparency of the selection process .

6) PM still has a hand in the Commission's decision. PM can still request that Commission selects and recommends two other names for judicial appointments (Source: Blogs)

The prime minister can request for two more names, thus enabling the prime minister to weigh amongst four names recommended by the Commission for certain posts. This does not mean that the prime minister 'has a hand' in the Commission's decision as the criteria for selection still applies; this simply means that the prime minister is enabled to see the top 2, then the top 4 choice of the Commission. Four names, recommended by known individuals, based on clear and good criteria, is a far cry from an unlimited number of names from unknown sources based on obscure criteria

7) Some of the government 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 (Source: Blogs)

Which proposals? The JAC was drafted in order to put in much more transparency into the judicial appointments process – known, credible individuals select a shortlist of names based on clear and good criteria. The 'power of the executive' has always had the force of law i.e. Article 122B of the Federal Constitution where the prime minister recommends judicial appointments to the Yang Di-Pertuan Agong and the Council of Rulers. In fact, the JAC only facilitates making this power more structured and transparent. All countries, including developed countries, have executive involvement in the judicial appointments process.

8) Rigid quorum poses possibility that decisions cannot be made (Source: Blogs)

The quorum must not be lowered or decisions on these significant appointments will be made by too few Commissioners.

9) JAC is still beholden to PM because PM decides on 4 eminent members (Source: blogs)

PM decides on eminent members after consultation with various stakeholders, including Bar Council of Malaysia as stated in Section 5(1). JAC must also select names based on good and clear criteria which includes integrity, competence, experience, good moral character, decisiveness, ability to make timely judgments, good legal writing skills, industriousness, ability to manage cases well, and physical & mental health, as stated in Section 23(2).

10) JAC does not have role of receiving and investigating complaints from public on the conduct of judges (Source: Blogs)

This is not the function of the JAC, the JAC selects names for judicial appointments. Receiving and investigating complaints on the conduct of judges lies with the ACA (on corruption-related complaints) and the judiciary (on disciplinary-related complaints).

11) Gobind Singh Deo (DAP-Puchong) said in a statement that the prime minister should not be given the right to choose judges as he pleases. (Source: The Star )

The prime minister does not have the right 'to choose judges as he pleases'. The prime minister's duty is to recommend judicial appointments to the Conference of Rulers as per Article 122B of the Federal Constitution. The JAC encourages a more structured and transparent basis to these recommendations.