For your information, nowadays the Parliament Website have become more efficient - and we can all get a look at the Bills being tabled - just go
http://www.parlimen.gov.my/eng-bills.php, and you can get access to the Bills BUT sadly, the Acts of Parliament section is lacking. I have copied and pasted the JUDICIAL APPOINTMENTS COMMISSION BILL 2008, which I obtained from this website below.
Anyway, just to let all know what the Bar Council thinks about the said Bill:-
A. OverviewIn considering the Government’s proposals under the Judicial Appointments Commission Bill 2008 (“JAC Bill”), it is important to bear in mind the underlying purpose and principles behind the setting up of a Judicial Appointments Commission (“JAC”). They are as follows:
| • | To recognise and maintain the separation between the Judicial, Executive and Legislative branches of Government;
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| • | To ensure transparency at all levels of the appointments process;
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| • | To ensure representation of various stakeholders in the judicial system on the JAC;
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| • | To ensure meaningful consultation with other concerned parties in the judicial appointments process;
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| • | To ensure accountability of those involved in the process; and
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| • | To clearly define criteria for the selection and promotion of judges.
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These purposes have been culled from the lessons of our own history. Malaysia’s experience from such events as the 1988 Judicial Crisis and the 2008 Royal Commission on the Video Clip, has taught us that part of what ails our current system stems from (i) Executive subjugation of the Judiciary; (ii) the pivotal role granted to the Executive in relation to judicial appointments (iii) the lack of transparency and accountability in the judicial appointments process and (iv) there being too much power and discretion being placed in the hands of too few.
The scope and operation of a judicial appointments commission must therefore be founded on the principles stated above.
Whether these principles have been adhered to in the Government’s Bill can be assessed from such key factors as the powers of the Prime Minister, the composition and functions of the JAC, the appointing body for members of the JAC, how the selection process is conducted (including matters such as selection criteria and the JAC’s quorum and voting requirements) and whether the Prime Minister is ultimately bound to select from within the candidates shortlisted by the JAC or may independently select his own candidate.
The Malaysian Bar welcomes the move to set up a judicial appointments commission but the Bill as it presently stands does not promote the principles and purposes outlined above. The following are the concerns of the Malaysian Bar:
| • | Far from preserving the separation of powers between the executive and the judiciary, the JAC Bill in fact seeks to statutorily reinforce and validate the power of the executive in key aspects of the judicial appointments process. The non ex-officio members of the JAC are to be appointed at the sole discretion of the Prime Minister. As the Prime Minister appoints 5 members of the JAC, he controls the appointment of the majority of the JAC. The JAC Bill leaves open the possibility that the Prime Minister may appoint politicians and former members of the Executive or the public services. The Prime Minister also has sole power to allocate funds and determine allowances to the JAC. The Prime Minister has the sole power to remove any ex-officio member of the JAC without assigning reason. In addition, the Prime Minister can regulate the manner in which the judicial selection process is carried out as well as the criteria for selection. |
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| • | The Bill provides for legislative powers to be vested in the Prime Minister in that he may, albeit for the first two years, change the provisions of the JAC Bill. |
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| • | Further, it is arguable that the Prime Minister is not limited to choosing a candidate from among those shortlisted by the JAC but may in fact appoint someone who has not gone through the JAC’s vetting and selection process. The Bill is vague and imprecise in this regard. Under the Bill, it is proposed that candidates be vetted by the JAC, which will then put forward either two or three names (depending on the type of vacancy) to the Prime Minister. For instance, clause 27 provides that the Prime Minister may call for two further names to be submitted to him. Thereafter, clause 28 does not explicitly state that the Prime Minister must recommend only those candidates proposed by the JAC to the Yang Di Pertuan Agong. The Bill should make clear that the Prime Minister can only recommend such candidates as emerge from the JAC’s deliberations. |
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| • | The JAC Bill in effect allows the Prime Minister to require to JAC to put forward four candidates for an appointment to an office bearer position, the Federal Court and Court of Appeal. In reality however, as these are senior positions in the judiciary, there are only likely to be a handful of qualified candidates. In respect of an appointment to the position of Chief Justice for example, there are only likely to be one or two suitably qualified candidates. In very rare cases, there may be three such candidates. Allowing the Prime Minister to call for up to four names for the position of Chief Justice, will render the JAC’s function as a vetting and selection body redundant. In effect, all names being considered by the JAC will have to be submitted to the Prime Minister. The JAC may even have to put forward the name of a less qualified candidate or one that was not initially being considered in order to fulfil the Prime Minister’s request. |
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| • | The various stakeholders are not represented on the JAC. The JAC Bill proposes that the JAC be comprised two groups: judges and “eminent persons”. The appointment of eminent persons is in the hands of the Prime Minister although there is a consultation process with various stakeholders, which we welcome. However, the Prime Minister is given the absolute power to remove any of the eminent persons without assigning a reason. Apart from affecting the independence of the eminent persons, this places far too much power in the hands of the Prime Minister. |
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| • | Although the stakeholders are consulted on the appointments of eminent persons, there is a glaring absence of any obligation on the JAC thereafter to consult with them in conducting the selection process for judicial vacancies. The Bill ought to impose such an obligation. |
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| • | The Prime Minister is not obliged to make his reasons for the rejection of a candidate known to the JAC. The Prime Minister is in effect empowered to reject the initial recommendations of the JAC and require that the JAC submit two further names to him. |
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| • | The Prime Minister is given unfettered power to amend the provisions of the Act by Gazette notification in the first two years after its coming into force. |
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| • | One of the key revelations of the Lingam enquiry was that manoeuvring for judicial appointments was facilitated by the placement of too much power in the hands of too few. The JAC Bill repeats the mistake, making the system once again overly dependent on the integrity of one person, that is, the Prime Minister. We recommend instead that the following powers given to the Prime Minister under the JAC Bill, be given to a parliamentary committee established for this purpose: |
| (i) | Appointment of ‘eminent persons’ to the JAC. |
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| (ii) | Determination of allowances for the JAC. |
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| (iii) | Removal / dismissal of JAC members. |
The totality of the issues set out above must be addressed so that the proposed JAC will meet the principles reflected in clause 2 of the JAC Bill namely to defend the independence of the judiciary and to ensure that public interest is properly represented in matters relating to the judiciary. In the final analysis, the Government’s proposal must not be seen to be legalising and reinforcing the control of the Executive over the judicial appointments process.
Constitutional Amendments Required
To be completely effective, the JAC Bill requires a Constitutional amendment. The following points must be noted.
The Constitution states, in Article 122B that before tendering his advice for an appointment to the positions of President of the Court of Appeal, Chief Judges of the High Court, judges of the Federal Court, judges of the Court of Appeal and judges of the High Court, the Prime Minister must consult the Chief Justice. Before advising on the appointment of Chief Judge of the High Court, the Prime Minister must consult the Chief Judge of each of the High Courts and if the appointment is in respect of the High Court of Sabah and Sarawak, the Prime Minister must consult the Chief Minister of each of those states. For non-office bearer positions in the Federal Court, Court of Appeal and High Court, the Prime Minister must consult with the respective head of that particular Court (i.e. the Chief Justice of the Federal Court, President of the Court of Appeal and the Chief Judge of High Court respectively).
The JAC is now a parallel process to the constitutional consultation process since it is envisaged that the JAC will vet and select candidates to be recommended to the Prime Minister, and bearing in mind that the respective office bearers of the judiciary are constituent members of the JAC.
The Constitutional process will always override any legislative process.
A further incongruity arises where for example, the Chief Justice in deliberations as a member of the JAC has disagreed with the JAC’s choice for appointment to a judicial vacancy. Under the Constitution, the Prime Minister must still consult the Chief Justice who thus effectively has a ‘second bite at the cherry’. In other words, the Chief Justice has the opportunity to express his personal view (contrary to the JAC’s position), thus undermining the decision of the JAC.
For this reason, Constitutional amendments are required and it is best that such amendment be made prior to the passage of this Bill.
A further reason for a Constitutional amendment is that the consultation process envisioned under the JAC Bill as well as the Bar Council’s alternative proposals (set out under Part B, paragraph 16 below) will effect a change in the Prime Minister’s prerogative. The current Constitutional provisions allow the Prime Minister to freely explore any number of candidates for each judicial vacancy. He must consult with certain office bearers of the judiciary, but he need not accept their views on the candidates. This unfettered prerogative of the Prime Minister will be checked once a JAC is introduced, with a Constitutional amendment.
Conclusion
The purpose of these comments is to give a broad overview of what the Malaysian Bar views as significant issues that must be addressed in the JAC Bill. It does not mean that the Malaysian Bar does not support the setting up of a JAC. We support the positive aspects of the Bill for example provisions which spell out criteria for the appointments. However, if there was truthful recognition of the crisis that the nation has endured and genuine effort to address the problem, there is no reason why amendments cannot be made to the Bill so as to make it effective. We strongly urge that the Bill be referred to a select committee of Parliament so that more views are canvassed, including views from the judiciary, before this important Bill is passed.
Certainly, more time is required and we are positive that with further consideration, Parliament will be able to establish a JAC that upholds the purposes and principles reflected in Clause 2 of the JAC Bill.
B. Comments on Specific Provisions of the JAC Bill
Clause 5:
| 1. | We cannot see a rationale for the inclusion of a judge of the federal court on the JAC, and no reason is proffered in the Explanatory Statement. The federal court judge may not be wholly independent and fearless because such a judge is subordinate to the office bearers of the judiciary. He may also have aspirations for higher office and this if of course a matter within the purview of the JAC. It is possible that he may, whether consciously or otherwise, subordinate his views to that of the office bearers of the judiciary sitting on the JAC. We therefore disagree with the inclusion of a federal court judge as a member of the JAC. As an alternative, the JAC Bill could instead increase the number of eminent persons on the JAC to 5. |
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| 2. | The selection of “eminent persons” leaves open the possibility that former members of the executive and public service, members of parliament and state assemblies and other politicians may sit on the JAC. It is our position that these former members ought to be expressly excluded. |
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| 3. | In respect of the Prime Minister’s role in the appointment of non ex-officio members of the JAC, the purpose of a JAC is to make the judicial appointments process independent of the Executive and to balance the role of the Prime Minister in the process. It would defeat this purpose if the Prime Minister had nominees on the JAC. The fact that the appointments of the non ex-officio members is in the hands of the Prime Minister is therefore wholly repugnant to the principle of separation of powers. This rationale should also apply in respect of powers to remove a member of the JAC, to determine the allowances of members of the JAC and to make regulations in respect of the JAC’s procedure. |
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| 4. | An alternative that may be explored, and which we recommend, is the setting up a parliamentary committee to oversee the appointment and removal of the non ex-officio members. Another alternative is to have the appointment of the first 5 non ex-officio members be undertaken by an alternative body, and subsequent appointments to be undertaken by the JAC itself. |
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| 5. | It is appropriate to remember that the 1988 judicial crisis was precipitated by power vested in the office of the Prime Minister. The findings of the Royal Commission of Inquiry on the Videoclip show that significant problems arose from the overemphasis on Executive power in the appointments process. Therefore, having nominees of the Prime Minister on the JAC fails to redress these problems. We do not agree that the appointment and removal of eminent persons be left to the Prime Minister. Rather, this should be placed in the hands of a parliamentary committee. |
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| Clause 7 |
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| 6. | The power to determine the allowances of the JAC should not be in the Prime Minister’s hands, for the reasons set out paragraph 3 above. We propose that all matters relating to funding for the JAC be approved and determined by Parliament. In this respect, Parliament could be aided by the recommendations of the parliamentary committee proposed in paragraph 4 above. |
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| Clause 9 |
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| 7. | For the reasons set out in paragraph 3 above, the Prime Minister should not have control over the dismissal of members of the JAC. Again, this should be undertaken by a parliamentary committee. |
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| Clause 10 |
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| 8. | We believe that sub-clause 1b(iii) needs to be amended to refer only to a situation where the person charged was in fact sentenced to a jail term of more than two years. Otherwise, it would seem that this clause imposes far too onerous a restriction on the members of the JAC. |
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| 9. | In addition, sub-clause (1) should include a provision that ex-officio members of the JAC vacate their post on the JAC automatically upon vacating their judicial office. |
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| 10. | On the Prime Minister’s power to appoint under sub-clause (2), we repeat our concerns stated in paragraph 3 above. This power to appoint should be given to a parliamentary select committee. |
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| Clause 11 |
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| 11. | We would propose that under the definition of “connected” in sub-clause (2), the category of connected persons should not be closed or limited to the instances set out therein, as various other relationships may fall under this category, for example, employer-employee relationships. The definition should be inclusive rather than exclusive. |
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| Clause 13 |
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| 12. | It appears from sub-clause (3) that a meeting of the JAC cannot be held in the event none of the judicial members are present. |
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| Clause 14 |
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| 13. | Sub-clause (2) has the effect of validating an improper and invalid meeting by the mere device of having minutes taken of the invalid meeting. This is extremely unusual, and would make nonsense of the other legal requirements of the Act, for example, clauses 11, 13(4), 13(5), and 24. This sub-clause would engender a lackadaisical attitude towards compliance or a disregard for the provisions of the Act. Sub-clause (2) should be deleted. |
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| Clause 15 |
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| 14. | This clause gives the JAC near absolute immunity from any breach of the other provisions of the proposed Act, and is against principles of transparency and accountability. It particularly enables the Commissioners to disregard with impunity their obligations under Clause 11. If the concern of the framers of the JAC Bill is that an appointment of a judge may be rendered defective by reason of any of the grounds set out in sub-clauses 15(a) – (c) and consequently that the judicial acts of that appointee may be rendered null and void, then such concern imay be specifically addressed by including a provision in the Bill to save such judicial acts irrespective of any defects in the appointment. The Bill should not seek to validate the appointment itself. |
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| Clause 18 |
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| 15. | Sub-clause 18(4) is inconsistent with Clause 16 and the independence of the JAC. The JAC should determine its own regulations and that of its committees. In this respect, we also recommend that clause 30 be amended to state the JAC may make its own regulations. This is to ensure the independence of the JAC from the Executive. |
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| Clause 22 |
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| 16. | The Bill specifies that the JAC shall select not less than 3 candidates for each vacancy in the High Court, and not less than 2 candidates for each vacancy in the superior courts other than the High Court. No rationale has been proffered for this minimum number of candidates that must be proposed by the JAC to the Prime Minister. In effect, the Prime Minister is asking for multiple choices. The JAC is charged with vetting and selecting the best candidate(s) according to select criteria. It would be a mockery of this process if the JAC is obliged to propose multiple candidates (i.e. more than the best candidate) especially if there may not be a sufficient number of candidates who have met the selection criteria. It may in any event not be practically feasible. This problem is further exacerbated by Clause 27 whereby the Prime Minister may require the JAC to propose a further 2 candidates for appointment to an office bearer position, the Federal Court and the Court of Appeal. In effect, the Prime Minister is entitled to call for 4 candidates for each vacancy in an office bearer position, the Court of Appeal and Federal Court. This defeats the purpose of the JAC as a vetting and selection body. Bar Council’s Proposal In respect of all appointments, whether to the High Court, Court of Appeal, Federal Court or an office bearer position, we recommend that the JAC shall initially select 1 candidate. The Prime Minister then has a choice of accepting the candidate, rejecting the candidate or asking the JAC to reconsider its recommendation. This is Stage 1. The Prime Minister may only exercise the options of rejection or reconsideration once each in any given vacancy. If the Prime Minister rejects the selection or requires reconsideration, the process moves to Stage 2. At this stage, the JAC again submits a name to the Prime Minister who has the following options: he may accept the selection; he may reject the selection (but only if he has not already used that power at Stage 1); or he may require reconsideration (but only if he has not already used that power at Stage 1). If asked to reconsider, the JAC may, after reconsideration, submit the same name to the Prime Minister. Thereafter, if the Prime Minister rejects the selection (but only if he has not already used that power at Stage 2) or requires reconsideration (but only if he has not already used that power at Stage 2) the process moves on to Stage 3. At this stage, the panel again puts a name to the Prime Minister. This time he must accept the selection of the JAC’s candidate, or of the candidate selected in Stage 1 or Stage 2 who the panel was asked to reconsider. The Prime Minister cannot at this stage, select the person who has been earlier rejected. Whenever the Prime Minister rejects a candidate or requires the JAC to reconsider a candidate, the Prime Minister must give his reasons for doing so in writing. Alternative Proposal As an alternative, we propose that the JAC be required to initially proffer up to two names to the Prime Minister for each vacancy. The JAC should not be required to produce two names initially since it is unlikely, especially in relation to office bearer positions, that there would be more than a few potential candidates. After the JAC’s vetting process, one candidate may be considered the better choice and it is this candidate’s name that should be put forward to the Prime Minister. After receiving the initial one or two names, the Prime Minister may require another name to be submitted but in that case, it is imperative that he must first give his reasons in writing. We believe that one of these proposals ought to be adopted. The current proposal (in particular the fact that the Prime Minister is not required to give reasons for requiring further candidates) is wholly contrary to the need for accountability and transparency in the appointments process. |
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| 17. | We would also note here that a constitutional amendment will be required to put in this new consultation and selection mechanism. Under the present Constitutional provisions, the Prime Minister may theoretically consider any number of candidates. While he will need to consult with certain office bearers of the judiciary, he need not accept their views. It is his prerogative to do so. However, under the JAC Bill and the alternative proposals of the Bar Council, such prerogative is to be limited. A Constitutional amendment is required to enable this. |
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| Clause 23 |
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| 18. | The phrase “knowledge of the judiciary” in sub-clause (4) is ambiguous and has not been defined nor explained in the Explanatory Statement. We would in any event propose that the phrase be removed as it does not appear to be material to the selection of judges. We would also recommend that the said sub-clause be expanded to include diversity that reflects Malaysia’s social and racial make-up. |
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| Clause 24 |
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| 19. | We cannot see a reason for the disqualification of the Chief Justice as Chairman under sub-clause (1), and no explanation is proffered in the Explanatory Statement. |
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| 20. | As has been pointed out by former Chief Justice Tun Abdul Hamid Mohamed (see The New Straits Times, 12.12.2008), there may be difficulty in reaching the quorum requirement of seven in respect of appointments to the position of Chief Justice and President of the Court of Appeal. This is the case for example since in respect of selection for the position of Chief Justice, at least 4 other members (i.e. the President of the Court of Appeal, Chief Justice of Malaya, Chief Justice of Sabah and Sarawak and the Federal Court judge) are potential candidates and hence disqualified from sitting. We are of the view that this difficulty may be resolved by increasing the number of “eminent persons” on the JAC. |
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| 21. | As an alternative, we propose that a special selection panel be formed in respect of selection of office bearer positions in the judiciary. The panel should comprise the following: |
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| (i) (ii) (iii) | the Chief Justice the two most senior members of the superior courts who are not candidates for the position all the eminent persons on the JAC |
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| 22. | In respect of the proposed voting by simple majority (sub-clause (5)), we propose that voting be by two-thirds majority of those present (with a minimum quorum of 7 members), in order to ensure that every recommendation or decision of the JAC will in effect receive the approval of the majority of the JAC’s members irrespective of the quorum present, for instance, where there are only 7 members present, a vote of 5 members is required to approve a candidate, and in effect the 5 also represents the majority of 9. |
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| Clause 27 |
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| 23. | We cannot see a rationale for this Clause, bearing in mind that the JAC would have proffered the best candidate(s) available at first instance. The Clause effectively allows the Prime Minister to disregard the considered decision of the JAC, bearing in mind that the Prime Minister is not required to give any reasons for his request of two additional names. As pointed out at paragraph 16, this effectively means that the Prime Minister is entitled to call for 4 candidates for each vacancy in an office bearer position, the Court of Appeal and Federal Court. This is so even when the JAC itself considers that only one or two candidates are suitable, which is likely in respect of office bearer positions in the Judiciary. For example, the JAC may be considering four candidates for the position of Chief Justice, as there is likely to be only a small pool of candidates available for this highest office. The present position effectively means that all such applicants for the position would have to be put forward by the JAC to the Prime Minister if he invokes Clause 27. Thus, Clause 27 renders the JAC redundant and gives the false impression that all the candidates are endorsed by the JAC. We reiterate our proposals set out at paragraph 16 above. |
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| Clause 28 |
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| 24 | It is noted that the Bill presently remains silent on the requirement that the Prime Minister may only select a candidate who has been put forward by the JAC. It is arguable that this is implied. However given that this is one of the core principles of the Bill, it is imperative that it be expressly and unequivocally stated. This Clause should be amended to make clear that the Prime Minister can only recommend names which are proposed by the JAC. |
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| Clause 29 |
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| 25. | Our view is that the position of Judicial Commissioners ought to be abolished. However, if maintained, then they ought not to be required to put in an application to become High Court judges. Rather, Judicial Commissioners should automatically be considered by the JAC for appointment to the High Court and should undergo the same vetting process as all other candidates. |
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| Clause 30 |
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| 26 | Once again, we cannot see the rationale for this Clause. The Prime Minister should not have control over the JAC’s procedures, and we refer to our comments in paragraphs 3 and 15 above. |
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| Clause 37 |
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| 27 | Clause 37 must be removed. It usurps the functions of Parliament and allows the Prime Minister to legislate by ministerial edict. This would, in our view, be unconstitutional. The explanation given in the Explanatory Statement that the purpose is to remove “any difficulties that may arise in connection with the implementation of the proposed Act” is wholly unconvincing. |
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Dato’ Ambiga Sreenevasan
President
Malaysian Bar
16 December 2008 {Source: Malaysian Bar Website
And, the Bill as promised is laid out below...
JUDICIAL APPOINTMENTS COMMISSION BILL 2008
ARRANGEMENT OF CLAUSES
Part I
PRELIMINARY
Clause
1. Short title, commencement and application
2. Upholding independence of judiciary
3. Interpretation
Part II
ESTABLISHMENT OF THE JUDICIAL APPOINTMENTS COMMISSION
4. Establishment of the Judicial Appointments Commission
5. Constitution of the Commission
6. Tenure of office
7. Allowances
8. Temporary exercise of functions of Chairman
9. Revocation of appointment and resignation
10. Vacation of office
11. Disclosure of interest
12. Protection from personal liability
13. Meetings
14. Minutes
15. Validity of acts and proceedings
16. Procedure
17. Member of Commission to devote time to business of Commission
18. Committees
19. Secretary to the Commission
20. Officers and servants of the Commission
Part III
FUNCTIONS AND POWERS OF THE COMMISSION
Clause
21. Functions and powers of the Commission
Part IV
SELECTION TO THE OFFICE OF THE CHIEF JUSTICE OF THE FEDERAL COURT,
THE PRESIDENT OF THE COURT OF APPEAL, THE CHIEF JUDGES OF THE
HIGH COURTS, JUDGES OF THE FEDERAL COURT, COURT OF APPEAL,
HIGH COURTS AND JUDICIAL COMMISSIONERS
22. Selection process
23. Selection criteria
24. Selection meeting
25. Disqualification from selection meeting
26. Report on recommendation
27. Request for further selection by the Prime Minister
28. Tender of advice
29. Judicial commissioners may apply to be High Court judges
Part V
GENERAL
30. Regulations
31. Annual report
32. Obligation of secrecy
33. Giving false information to the Commission
34. Influencing or attempting to influence the Commission
35. Institution and conduct of prosecution
36. Public servant
37. Prevention of difficulties or anomalies
Judicial Appointments Commission 3
An Act to provide for the establishment of the Judicial Appointments
Commission in relation to the appointment of judges of the superior
courts, to set out the powers and functions of such Commission,
to uphold the continued independence of the judiciary, and to
provide for matters connected therewith or incidental thereto.
[ ]
ENACTED by the Parliament of Malaysia as follows:
Part I
PRELIMINARY
Short title, commencement and application
1. (1) This Act may be cited as the Judicial Appointments
Commission Act 2008.
(2) This Act comes into operation on a date to be appointed
by the Prime Minister by notification in the Gazette.
(3) This Act applies to the appointments of judges of the
Federal Court, Court of Appeal and High Court and judicial
commissioners and shall include the appointments of the Chief
Justice of the Federal Court, the President of the Court of Appeal,
the Chief Judge of the High Court in Malaya, the Chief Judge
of the High Court in Sabah and Sarawak made on or after the
commencement of this Act.
Upholding independence of judiciary
2. The Prime Minister must uphold the continued independence
of the judiciary and must have regard to—
(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary
to enable them to exercise their functions;
(c) the need for public interest to be properly represented in
regard to matters relating to the judiciary, the administration
of justice and related matters.
Interpretation
3. In this Act, unless the context otherwise requires—
“member of the Commission” means the person appointed under
section 5;
“judges of the superior courts” means judges of the High
Court, Court of Appeal and Federal Court and shall include the
Chief Justice of the Federal Court, the President of the Court of
Appeal, the Chief Judge of the High Court in Malaya and the
Chief Judge of the High Court in Sabah and Sarawak;
“superior courts” means the Federal Court, the Court of Appeal,
the High Court in Malaya and the High Court in Sabah and
Sarawak except where expressly stated otherwise;
“selection meeting” means a meeting called to consider the
selection of persons qualified to fill a vacancy in the superior
court;
“Chairman” means the Chairman of the Commission;
“Secretary” means the Secretary to the Commission;
“Commission” means the Judicial Appointments
Commission.
Part II
ESTABLISHMENT OF THE JUDICIAL APPOINTMENTS
COMMISSION
Establishment of the Judicial Appointments Commission
4. The Judicial Appointments Commission is established.
Constitution of the Commission
5. (1) The Commission shall consist of the following
members:
(a) the Chief Justice of the Federal Court who shall be the
Chairman;
(b) the President of the Court of Appeal;
(c) the Chief Judge of the High Court in Malaya;
(d) the Chief Judge of the High Court in Sabah and
Sarawak;
(e) a Federal Court judge to be appointed by the Prime
Minister; and
(f) four eminent persons, who are not members of the
executive or other public service, appointed by the Prime
Minister after consulting the Bar Council of Malaysia,
the Sabah Law Association, the Advocates Association
of Sarawak, the Attorney General of the Federation, the
Attorney General of a State legal service or any other
relevant bodies.
(2) The appointment of members of the Commission and the
duration of the appointment shall be published in the Gazette.
Tenure of office
6. (1) Members of the Commission appointed under paragraphs
5(1)(e) and (f) shall hold office for a period of two years and is
eligible for reappointment but no member shall hold office for
more than two terms.
(2) A member of the Commission appointed under paragraph
5(1)(f) shall be disqualified from consideration for any appointment
to the superior court during the tenure of his office as a member
and for a term of two years after the cessation of his appointment
as a member of the Commission.
Allowances
7. The members of the Commission shall be paid such allowances
as the Prime Minister may determine.
Temporary exercise of functions of Chairman
8. (1) The President of the Court of Appeal shall act as the
Chairman of the Commission for the period when—
(a) the office of the Chairman is vacant;
(b) the Chairman is absent from duty or from Malaysia; or
(c) the Chairman is, for any other reason, unable to
perform his functions.
(2) The President of the Court of Appeal shall, during the period
in which he is performing the function of the Chairman under this
section, be deemed to be the Chairman of the Commission.
Revocation of appointment and resignation
9. (1) The appointment of any member appointed under paragraph
5(1)(f) may at any time be revoked by the Prime Minister without
assigning any reason therefor.
(2) A member appointed under paragraph 5(1)(f) may at any
time resign his office by a written notice addressed to the Prime
Minister.
Vacation of office
10. (1) The office of a member of the Commission shall be
vacated if—
(a) he dies;
Judicial Appointments Commission 7
(b) there has been proved against him, or he has been convicted
of, a charge in respect of—
(i) an offence involving fraud, dishonesty or moral
turpitude;
(ii) an offence under any law relating to corruption;
or
(iii) any other offence punishable with imprisonment
(in itself only or in addition to or in lieu of a
fine) for more than two years;
(c) he becomes a bankrupt;
(d) he is of unsound mind or is otherwise incapable of
discharging his duties;
(e) he absents himself from three consecutive meetings of
the Commission without leave of the Chairman or, in
the case of the Chairman, without leave of the Prime
Minister;
(f) his appointment is revoked by the Prime Minister; or
(g) his resignation is accepted by the Prime Minister.
(2) Where the office of a member of the Commission is vacated
pursuant to subsection (1), the Prime Minister may appoint any
person he deems fit to fill up the vacancy thereby created for
the remainder of the term vacated by the member or for the
interim period until a new person is appointed to the office or
the position held by that member prior to his vacating the office
or position.
(3) Any period of appointment made under subsection (2) shall
not be taken into consideration in the reckoning of the period of
appointment specified in section 6.
Disclosure of interest
11. (1) Any member of the Commission related or connected
to any candidate being considered for selection shall disclose to
the Commission his relationship to the candidate.
8 Bill
(2) A disclosure under subsection (1) shall be recorded in
the minutes of the meeting of the Commission in which the
matter is discussed or deliberated and, after the disclosure, the
member—
(a) shall not be present in any discussion or deliberation, or
decision of the Commission when the matter is discussed
or deliberated, or decided upon; and
(b) shall be disregarded for the purpose of constituting a
quorum of the Commission when the matter is discussed
or deliberated, or decided upon.
(3) For the purpose of this section—
“related”, in relation to a member of the Commission,
means—
(a) a spouse or former spouse of the member of the
Commission;
(b) a brother or sister of the member of the Commission;
(c) a brother or sister of a spouse or a former spouse of the
member of the Commission;
(d) a lineal ascendant or descendant of the member of the
Commission;
(e) a lineal ascendant or descendant of a spouse or a former
spouse of the member of the Commission;
(f) a spouse or a former spouse of any person referred to in
paragraph (b), (c), (d) or (e);
(g) a lineal descendant of a person referred to in paragraph
(b), (c) or (f);
(h) an uncle, aunt or a cousin of the member of the Commission,
or an uncle, aunt or a cousin of a spouse or a former
spouse of the member of the Commission; or
(i) a lineal ascendant or descendant of the person referred
to in paragraph (h);
“connected”, in relation to a member of the Commission,
means—
(a) a person who is a nominee of the member of the
Commission;
Judicial Appointments Commission 9
(b) a partner of the member of the Commission;
(c) a former partner of the member of the Commission;
(d) a spouse of a partner or former partner of the member
of the Commission;
(e) a former spouse of a partner or former spouse of a former
partner of the member of the Commission;
(f) a person practising in a firm in which the member of the
Commission or his nominee—
(i) is a partner;
(ii) is a person in charge or in control of its business
or affairs;
(iii) is a consultant; or
(iv) is employed in;
(g) a person who is a director in any corporation in which
the member of the Commission or his nominee—
(i) is a director; or
(ii) is in charge or in control of its business or affairs;
or has or have a controlling interest or shares to
the total value of not less than thirty per centum
of the total issued capital of the corporation; or
(h) a trustee of a trust under which the member of the
Commission or the member’s family is a beneficiary.
(4) Any member of the Commission who fails to disclose his
interest as required under subsection (1) commits an offence and
shall, on conviction, be liable to a fine not exceeding one hundred
thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
Protection from personal liability
12. No member of the Commission shall incur personal liability for
any loss or damage caused by any act or omission in administering
the affairs of the Commission, unless the loss or damage is
occasioned by an intentionally wrongful act or omission on his
part.
Meetings
13. (1) The Commission shall meet at least once a month at
such time and place as may be determined by the Chairman.
(2) At least ten days notice in writing or by electronic mail
shall be given to the members of the Commission.
(3) The Chairman shall preside at any meeting of the Commission
and if for any reason the Chairman is unable to attend, the next
most senior judge shall be the chairman.
(4) The quorum of the Commission shall be seven including
the Chairman.
(5) If the quorum as provided by subsection (4) is not present
due to members being disqualified under section 11 or 25, then
the quorum shall not be less than five.
(6) Every member of the Commission present shall be entitled
to one vote by secret ballot and in the event of a tie in the number
of votes casted, the Chairman or the member of the Commission
presiding as the Chairman for the meeting shall have a casting
vote.
(7) The Commission may invite any person to attend a meeting
of the Commission for the purpose of advising it on any matter
under discussion, but that person shall not be entitled to vote at
the meeting.
Minutes
14. (1) The Commission shall cause minutes of all its meetings
to be maintained and kept in a proper form.
(2) Every meeting of the Commission in respect of the
proceedings of which minutes have been so made shall be deemed
to have been duly convened and held and all members thereat to
have been duly qualified to act.
Judicial Appointments Commission 11
Validity of acts and proceedings
15. No act done or proceeding taken under this Act shall be
questioned on the ground of—
(a) a vacancy in the membership of, or a defect in the
constitution of, the Commission;
(b) the contravention by any member of the Commission of
the provisions of section 11; or
(c) an omission, a defect or an irregularity not affecting the
merits of the case.
Procedure
16. Subject to this Act, the Commission shall determine its own
procedure.
Member of Commission to devote time to business of
Commission
17. Every member of the Commission shall devote such time to
the business of the Commission as may be necessary to discharge
his duties effectively.
Committees
18. (1) The Commission may set up any committee it deems
fit to assist in the implementation of its functions.
(2) The Commission may appoint any of its members to be
the chairman or members for the committee.
(3) The Commission may at any time terminate or make any
changes in the composition of the members of the committee.
(4) Subject to any regulations made by the Prime Minister,
a committee set up by the Commission may determine its own
procedure.
(5) The chairman of a committee shall cause the minutes of
the meeting to be maintained and kept in a proper form and the
copies of the minutes of all meetings shall be submitted to the
members of the Commission as soon as may be.
(6) A committee may invite any person who is not a member
of the committee to attend any meeting of the committee for the
purpose of advising it on any matter under discussion but that
person is not entitled to vote at the meeting.
Secretary to the Commission
19. (1) There shall be appointed a Secretary to the Commission
by the Prime Minister from amongst members of the general
public service of the Federation for such period and on such
terms and conditions as may be specified in the instrument of
appointment.
(2) The Secretary shall be responsible for—
(a) the general conduct, administration and management of
the functions and activities of the Commission; and
(b) the carrying out of the decisions of the Commission.
(3) The Secretary shall perform such further duties as the
Commission may from time to time direct.
(4) In discharging his duties the Secretary shall act under the
general authority and direction of the Commission.
Officers and servants of the Commission
20. (1) There shall be appointed such number of officers and
servants of the Commission as may be necessary from amongst
members of the general public service of the Federation for such
period and on such terms and conditions as may be specified
in their instruments of appointment to assist the Commission in
carrying into effect the provisions in this Act.
(2) Every officer and servant of the Commission shall be subject
to the direction, control and supervision of the Secretary.
Part III
FUNCTIONS AND POWERS OF THE COMMISSION
Functions and powers of the Commission
21. (1) The functions of the Commission are—
(a) to select suitably qualified persons who merit appointment
as judges of the superior court for the Prime Minister’s
consideration;
(b) to receive applications from qualified persons for the
selection of judges to the superior court;
(c) to formulate and implement mechanisms for the selection
and appointment of judges of the superior court;
(d) to review and recommend programmes to the Prime
Minister to improve the administration of justice;
(e) to make other recommendations about the judiciary;
and
(f) to do such other things as it deems fit to enable it to
perform its functions effectively or which are incidental
to the performance of its functions under this Act.
(2) The Commission shall have all such powers as may be
necessary for, or in connection with, or reasonably incidental to,
the performance of its functions under this Act.
Part IV
SELECTION TO THE OFFICE OF THE CHIEF JUSTICE OF THE
FEDERAL COURT, THE PRESIDENT OF THE COURT OF APPEAL,
THE CHIEF JUDGES OF THE HIGH COURTS, JUDGES OF THE
FEDERAL COURT, COURT OF APPEAL, HIGH COURTS AND
JUDICIAL COMMISSIONERS
Selection process
22. (1) On receiving a request, the Commission must notify
the members of the Commission and prepare for a selection
meeting.
(2) In a selection meeting, the Commission shall apply the
selection process as prescribed by regulations made under this
Act and—
(a) select not less than three persons for each vacancy in
the High Court; or
(b) select not less than two persons for each vacancy where
the vacancy is for judges of the superior courts other
than the High Court.
Selection criteria
23. (1) A candidate is qualified for selection if he fulfils the
requirement under Article 123 of the Federal Constitution.
(2) The Commission in selecting candidates shall take into
account amongst others, the following criteria:
(a) integrity, competency and experience;
(b) objective, impartial, fair and good moral character;
(c) decisiveness, ability to make timely judgments and good
legal writing skills;
(d) industriousness and ability to manage cases well; and
(e) physical and mental health.
(3) A person who is a serving judge or judicial commissioner
must not be appointed if he has three or more pending judgments
or unwritten grounds of judgments that are overdue by sixty days
or more from the date they are deemed to be due.
(4) The Commission in selecting candidates must also take
into account the need to encourage diversity in the range of legal
expertise and knowledge in the judiciary.
Selection meeting
24. (1) The Chairman shall also be the chairman for the selection
meeting except where the selection meeting is to consider the
selection of persons for vacancies in the High Courts.
Judicial Appointments Commission 15
(2) The Chairman may nominate a judge from amongst the
members of the Commission to be the chairman for a selection
meeting to consider the selection of persons for vacancies in the
High Courts.
(3) Where the Chairman is incapacitated, disqualified or
unavailable, the next most senior judge on the Commission who
is not disqualified and is available will be the chairman of the
selection meeting.
(4) The quorum for every selection meeting shall be seven.
(5) Any vote taken at the selection meeting must be made by
secret ballot and by majority decision.
Disqualification from selection meeting
25. A member of the Commission is disqualified from attending
or participating in a selection meeting if he is being considered
for selection or where section 11 applies.
Report on recommendation
26. (1) After making its selection, the Commission shall submit
to the Prime Minister a report which shall—
(a) state who has been selected by the Commission to
be recommended for the appointment to the office
concerned;
(b) state the reasons for such selection; and
(c) contain any other information the Commission deems
necessary to bring to the knowledge of the Prime
Minister.
(2) After submitting the report, the Commission shall provide any
further information as may be required by the Prime Minister.
Request for further selection by the Prime Minister
27. The Prime Minister may, after receiving the report under section
26, request for two more names to be selected and recommended
ill for his consideration with respect to any vacancy to the office of
the Chief Justice of the Federal Court, the President of the Court
of Appeal, the Chief Judge of the High Court in Malaya, the
Chief Judge of the High Court in Sabah and Sarawak, judges of
the Federal Court and the Court of Appeal, and the Commission
shall, as soon as may be practicable, comply with the request
in accordance with the selection process as prescribed in the
regulations made under this Act.
Tender of advice
28. Where the Prime Minister has accepted any of the persons
recommended by the Commission, he may proceed to tender
his advice in accordance with Article 122b of the Federal
Constitution.
Judicial commissioners may apply to be High Court judges
29. All judicial commissioners appointed before the coming
into operation of this Act may file their applications with the
Commission if they are desirous of being selected as High Court
judges in accordance with the provisions of this Act within the
time and manner specified by the Commission.
Part V
GENERAL
Regulations
30. The Prime Minister may, on the recommendation of the
Commission, make regulations for the purpose of carrying out or
giving effect to the provisions of this Act, including regulations
relating to the selection process and method to be applied by the
Commission in making its selection and recommendation under
this Act.
Annual report
31. (1) The Commission must prepare an annual report every
year.
(2) The Commission shall, not later than the first meeting
of Parliament of the following year, submit its annual report to
Parliament of all its activities during the year to which the report
relates.
Obligation of secrecy
32. (1) No member of the Commission and officers and servants
of the Commission, whether during or after his tenure of office or
employment, shall disclose any information or document obtained
by him in the course of his duties.
(2) No other person who has by any means access to any
information or documents relating to the affairs of the Commission
shall disclose such information or document.
(3) Where any person ceases to be a member of the Commission,
he shall return to the Secretary all papers and documents entrusted
to him by virtue of his membership of the Commission.
(4) Any person who contravenes subsection (1), (2) or (3)
commits an offence and shall, on conviction, be liable to a fine
not exceeding one hundred thousand ringgit or to imprisonment
for a term not exceeding two years or to both.
Giving false information to the Commission
33. Any person who wilfully gives to the Commission any
information which is false or misleading in support of any
candidacy for selection under this Act commits an offence and
shall, on conviction, be liable to a fine not exceeding one hundred
thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
Influencing or attempting to influence the Commission
34. Any person who, otherwise than in the course of his duty,
directly or indirectly by himself or by any other person in any
manner whatsoever influences or attempts to influence any
decision of the Commission or any member thereof commits an
offence and shall, on conviction, be liable to a fine not exceeding
one hundred thousand ringgit or to imprisonment for a term not
exceeding two years or to both.
Institution and conduct of prosecution
35. No prosecution in respect of any offence under this Act
shall be instituted except by or with the consent of the Public
Prosecutor.
Public servant
36. Every member of the Commission, the Secretary or any
other officer or servant of the Commission, while discharging
his duties as such member, officer or servant shall be deemed
to be a public servant within the meaning of the Penal Code
[Act 574].
Prevention of difficulties or anomalies
37. (1) The Prime Minister may, whenever it appears to him
necessary or expedient to do so, whether for the purpose of
removing difficulties or preventing anomalies in consequence of
the enactment of this Act, by order published in the Gazette make
such modifications to any provisions of this Act as he thinks
fit.
(2) The Prime Minister shall not exercise the powers conferred
by this section after the expiration of two years from the date of
coming into operation of this Act.
(3) In this section, “modifications” includes amendments,
additions, deletions, substitutions, adaptations, variations, alteration
and non-application of any provisions of this Act.
EXPLANATORY STATEMENT
This Bill seeks to provide for the establishment of the Judicial Appointments
Commission, to set out the powers and functions of such Commission, and
to provide for matters connected therewith or incidental thereto. This Bill is
introduced as part of the Government initiative to improve the process of
appointment of judges under the Federal Constitution. This Bill will complement
the existing provisions of the Federal Constitution, making the process more
collective and transparent whilst preserving the Prime Minister’s prerogative
in judicial appointments.
Judicial Appointments Commission 19
Part I
2. Part I of the proposed Act contains preliminary matters.
Clause 1 deals with the short title, commencement and application.
The Act proposed by this Bill seek to provide a clearly defined selection
process to be applied by the Judicial Appointments Commission for the
appointment of persons to the office of the Chief Justice of the Federal Court,
the President of the Court of Appeal, the Chief Judge of the High Court in
Malaya, the Chief Judge of the High Court in Sabah and Sarawak, judges of
the Federal Court, Court of Appeal, High Court or a judicial commissioner
pursuant to Article 122b and Article 122ab respectively.
Clause 2 states the need to uphold the independence of the judiciary.
Clause 3 contains the definitions of certain expressions used in the Act.
Part II
3. Part II of the proposed Act contains provisions on the establishment of
the Judicial Appointments Commission (“the Commission”).
Clauses 4 and 5 seek to provide for the establishment of the Commission
and the constitution of the Commission.
Clause 6 contains provisions on the tenure of office for certain members
of the Commission whilst clause 7 provides for the payment of allowances
to members of the Commission.
Clause 8 provides for the temporary exercise of functions of the
Chairman.
Clause 9 pertains to the revocation of appointment of certain members of
the Commission and their resignation.
Clause 10 spells out the circumstances in which the office of a member of
the Commission becomes vacant.
Clause 11 provides for the obligation to disclose the relationship of any
member to any candidate being deliberated. The clause also spells out the
relationship required to be disclosed and the penalty for non-disclosure.
Clause 12 seeks to protect members of the Commission from incurring
personal liability in administering the affairs of the Commission.
Clause 13 provides for procedures of the meetings of the Commission.
All meetings of the Commission shall be chaired by the Chief Justice of the
Federal Court who is the Chairman. However, if he is unable to attend for
whatever reasons, the next most senior judge shall be the chairman.
20 Bill
Clause 14 provides that minutes of all meetings of the Commission shall
be maintained and kept in proper form.
Clauses 15, 16 and 17 seek to provide for the validity of acts and proceedings
undertaken under the proposed Act, that the Commission shall determine its
own procedure and that the members of the Commission shall devote such
time to the business of the Commission in order to discharge their duties
effectively.
Clause 18 seeks to enable the Commission to establish committees to assist
in the performance of its functions.
Clauses 19 and 20 provide for the appointment of the Secretary, officers
and servants of the Commission.
Part III
4. Part III of the proposed Act contains provision relating to the functions
and powers of the Commission.
Clause 21 sets out the functions of the Commission which are as
follows:
(a) to select suitably qualified persons who merit appointment as judges
of the superior court for the Prime Minister’s consideration;
(b) to receive applications from qualified persons for the selection of
judges to the superior court;
(c) to formulate and implement mechanisms for the selection and appointment
of judges of the superior court;
(d) to review and recommend programmes to the Minister to improve the
administration of justice;
(e) to make other recommendations about the judiciary; and
(f) to do such other things as it deems fit to enable it to perform its
functions effectively or which are incidental to the performance of
its functions under the proposed Act;
Part IV
5. Part IV of the proposed Act relates to the selection process.
Clause 22 provides for the process of selection upon receipt of a request
to the Commission.
Clause 23 provides for selection criteria.
Clause 24 relates to selection meeting.
Judicial Appointments Commission 21
Clause 25 provides for the disqualification of a member of the Commission
from a meeting if he is being considered for selection or if clause 11
applies.
Clause 26 deals with recommendations to the Prime Minister.
Clause 27 requires the Commission to initiate the selection process once
again should the Prime Minister requests for an additional two names to be
recommended to him to fill any vacancy to the office of Chief Justice of
the Federal Court, the President of the Court of Appeal, the Chief Judge of
the High Court in Malaya, the Chief Judge of the High Court in Sabah and
Sarawak, judges of the Federal Court and the Court of Appeal.
Clause 28 states that the Prime Minister may tender his advice in accordance
with Article 122b of the Federal Constitution if he has accepted any of the
persons recommended by the Commission.
Clause 29 provides that judicial commissioners appointed before the coming
into operation of the proposed Act may apply to be High Court judges.
Part V
5. Part V of the proposed Act contains general provisions.
Clause 30 provides for the power to make regulations
Clause 31 provides for the submission of an annual report to Parliament.
Clause 32 prohibits the disclosure of information relating to the affairs of
the Commission.
Clause 33 prohibits any person from wilfully giving any false or misleading
information to the Commission with regards to any candidacy.
Clause 34 seeks to make it an offence for any person, otherwise than in
the course of his duty, directly or indirectly by himself or by any other person
to influence or attempts to influence any decision of the Commission or any
member of the Commission.
Clause 35 seeks to provide for the institution and conduct of
prosecution.
Clause 36 provides that every member of the Commission, the Secretary,
officer or servant of the Commission, shall be deemed to be a public servant
within the meaning of the Penal Code while discharging his duties as such.
Clause 37 empowers the Prime Minister to make an order for the purpose of
removing any difficulties that may arise in connection with the implementation
of the proposed Act.
22 Bill
FINANCIAL IMPLICATIONS
This Bill will involve the Government in extra financial expenditure the amount
of which cannot at present be ascertained.
[PN(U2)2675]
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