Why is the INDEPENDENCE of the Judiciary important?
In a democracy, there are 3 branches - the Executive(PM,Cabinet), the Legislature (Parliament) and the Judiciary(Courts and Judges) - and they must be INDEPENDENT of each other, and should be an effective 'check and balance' to the other 2 branches of government.
Let's consider here the role of the Judiciary
The judiciary acts as a crucial check on the executive branch by interpreting laws, ensuring their constitutionality, and resolving disputes, including those involving executive actions. Through judicial review, courts can invalidate laws or actions deemed unconstitutional, thus preventing overreach by the executive. This role is vital in maintaining the balance of power within a government and upholding the rule of law
The problem is the ROLE of the Prime Minister(the Executive) in the choosing and appointing of Judges, elevating Judges to Court of Appeal, deciding who should be the Chief Justice, President of the Court of Appeal, the Chief Judge of the High Court of Malaya, and the Chief Judge of the High Court of Sabah-Sarawak.
What we wanted was an INDEPENDENT Judicial Appointments Commission, that will directly advice the King on appointment of Judges. However, when the Judicial Appointments Commission came into being - it was far from what we wanted, for the Federal Constitution was not simultaneously amended - and was left with the Prime Minister still having the ULTIMATE power to advise the King on appointment of Judges. The JAC was not even mentioned in the Constitution. And, the Judicial Appointments Commission Act 2009 only talked about the JAC making recommendations to the Prime Minister - BUT if failed to mention that the PM have to follow the recommendations of the JAC. Another problem was the composition of the 9 member JAC, which allowed 5 members to be political appointees of the Prime Minister - which means that even with the JAC, the PM has the possibility of influencing the recommendations of the JAC. - See below about the Bar's observation of the Judicial Appointments Commission Bill - highlighting its failings, far from what was hoped for
Despite these 'flaws', there seem to have been no issue with previous Prime Ministers - as they seemed to follow the recommendations of the JAC in the appointing and elevating Judges.
However, with Prime Minister Anwar Ibrahim, it seems that this PM may have been appointing and elevating Judges NOT RECOMMENDED by the JAC. This was implied in the speech of Chief Justice.
All that was needed was the assurance of PM Anwar, that all the Judges appointed or elevated to higher courts was based on the recommendations of the JAC, and he was not appointing Judges not recommended by the JAC - SADLY, Anwar did not do this - hence raising suspicions that
1st RECENT ISSUE - Why was the tenure of the CJM and 2 other Judges not offered the 6 month extension, when other judges in similar position were? Did the JAC decide? Or was it Prime Minister's decision? Take note, the King or the Rulers Conference really have no power - for the King ultimately must do as the Prime Minister advices...?
Art 40 Federal Constitution - Yang di-Pertuan Agong to act on advice
(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.
(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.
So, why did Anwar Ibrahim NOT advice the King to also extend the tenure of the 3? WHY - the Prime Minister must explain CLEARLY - was there a reason why he did not want to extend the tenure of the 3 by 6 months? True, it is not mandatory to extend 6 months, but we, Malaysians, deserve a proper explanation - hopefully it was not because these Judges were doing things that 'angered' Anwar...
2nd ISSUE - Has the Prime Minister been acting on his own, ignoring the recommendations of the JAC? Who are the JUDGES appointed, who were not recommended by the JAC?
As mentioned, the JAC is made up of Chief Justice, President of the Court of Appeal, Chief Judge of Malaya, Chief Judge of Sabah/Sarawak and 5 persons appointed by the Prime Minister.
Thus, if the Prime Minister appoints on his own, not following the recommendation of the JAC the new Chief Justice, President of the Court of Appeal and the 2 Chief Judges of the High Court - we will have a JAC of just the PM's people - and henceforth, the risk of Judges appointed being just those the PM wants... That is the RISK.
Noting further, that Anwar Ibrahim is also involved in several cases as a party - will justice be done or be seen to be done, if the judges hearing these cases are Judges appointed by PM Anwar?
Note, there is already a problem, when the sitting PM has the power to elevate judges to Court of Appeal and Federal Court - and that too may impact on the 'INDEPENDENCE' of judges, who may choose not to 'anger' the PM to brighten their chances of elevation or promotion, and now even getting the 6-month extension post retirement age of 66.
Some believe that PM Anwar Ibrahim already wants former Attorney General Ahmad Terrirudin bin Mohd Salleh, who was suddenly appointed as Federal Court Judge in 2024 as the new Chief Judge of Malaya...we shall see...we shall see.
As I mentioned earlier, the appointment of a sitting Attorney General/Public Prosecutor would most likely not have been recommended by the JAC, especially sitting Judges who know the importance of the independence of a Public Prosecutor - different if Terrirudin had retired/resigned already when the JAC considered him for a Federal Court position. Was the decision to appoint Terrirudin as Federal Court Judge a unanimous recommendation of the JAC?
Ahmad
Terrirudin,56 years old, could not be retiring yet? So, why the AG/PP
removed so soon after 13 months? Did the JAC recommend Terrirudin to be
appointed Federal Court Judge?
ODD - nothing in media about AG Terrirudin to be made Chief Judge of Malaya? Protect Independence of Judges/AG? Free yourself from 'feudalism' or neo-feudalism? Transparency - no more 'secret' appointment process?
No to the appointment of current Public Prosecutor as Federal Court Judge or Chief Judge of Malaysia – Protect the Independence of Public Prosecutor and the Judiciary ### Another removal of the Public Prosecutor/Attorney General?
A BLEAK FUTURE...
There is a worry as to whether Anwar's chosen judges will OVERTURN good Federal Court decisions because Anwar wants it? Will Anwar file a REVIEW of his corruption and/or Sodomy convictions, and the Federal Court may now quash the said convictions and acquit Anwar?
Will Yusoff Rawther who is suing Anwar Ibrahim for sexual harassment get a FAIR TRIAL - As it is, the Judge has already been changed to a NEW Judge, who was appointed recently by the King on the advice of PM Anwar Ibrahim. Rightly, in my opinion, that Judge must RECUSE herself and the case should be heard by a High Court Judge appointed before Anwar Ibrahim became Prime Minister.
Roz
Mawar Rozain must recuse herself from Yusoff Rawther - Anwar Ibrahim
case for justice to be seen to be done. Will judges 'picked' by Anwar be
INDEPENDENT in cases involving Anwar, family/friends or even his
government?
All in all, we may be in a JUDICIAL CRISIS far worse that the Judicial Crisis of 1988, and Judicial Crisis post the revelations of the Lingam Tapes...
Who are the members of the Judicial Appointments Commission?
Answer
YAA Tun Tengku Maimun binti Tuan Mat
The Chief Justice, Malaysia Chairman of the Judicial Appointments Commission:
1 YAA Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim
President of the Court of Appeal, Malaysia2 YAA Tan Sri Hasnah binti Dato’ Mohammed Hashim
Chief Judge of The High Court in Malaya3 YAA Tan Sri Abdul Rahman bin Sebli
Chief Judge of The High Court in Sabah and Sarawak
Members of Judicial Appointments Commission appointed by YAB the Prime Minister 4 YA Dato' Zabariah binti Mohd Yusof
Federal Court Judge5 YBhg. Tan Sri Dato' Sri Idrus bin Harun
Former Attorney General, Malaysia6 YBhg. Tan Sri Datuk Zainun binti Ali
Former Judge of The Federal Court7 YBhg. Dato' Sri Talat Mahmood bin Abdul Rashid
Former State Attorney General, Sarawak8 YBrs. Profesor Madya Dr. Hartini binti Saripan
Lecture, Faculty of Law, Mara University of Technology (UiTM)
What is happening now cannot be IGNORED? Anwar may be Prime Minister BUT still he cannot do as he pleases
Uncertainty at the Top Undermines Judicial Independence 30 Jun 2025 11:36 am
The Malaysian Bar expresses its deep concern over the inaction and lack of clarity regarding the impending retirement of the Chief Justice of Malaysia, now just a day away. As of today, there has been no formal announcement of a successor or whether an extension is to be granted. This level of silence and indecision on matters concerning the highest level of the Judiciary is indefensible.
The position of the Chief Justice is not symbolic — it is central to the integrity, independence, and functioning of the entire judicial system. Leaving the post in uncertainty so close to the retirement date reflects a failure in institutional responsibility. This is not merely an administrative lapse. A breakdown in governance risks damaging public confidence in the Judiciary and opens the door to speculation and unhealthy conjecture.
The Malaysian Bar has consistently refrained from advocating for or against the appointment or extension of any individual judge. Our role is not to lobby, endorse, or influence the appointment process. The Malaysian Bar respects and upholds that boundary. But we must also speak when institutional silence threatens judicial independence. What we are witnessing now is not an issue of lobbying or preference; it is an issue of urgency, transparency, and the proper functioning of a constitutional democracy.
Malaysia has clear precedents for handling transitions in judicial leadership. Acting appointments have been made when necessary, and leadership transitions have generally been dealt with adequate foresight. What is unfolding now is unprecedented. With less than 48 hours to go before the sitting Chief Justice retires, there is still no official word from the relevant authorities. This vacuum, at the very apex of the Judiciary, is as absurd as it is dangerous.
In the absence of clarity, the public begins to speculate. Rumours thrive, confidence erodes. None of this should be allowed to happen — and yet, all of it could have been easily avoided with timely action.
We take note of the Prime Minister’s remarks today1 regarding alleged lobbying for an extension of the Chief Justice’s tenure and the importance of safeguarding the Judiciary from politicisation. The Malaysian Bar fully supports the principle that judicial appointments must remain free from lobbying or external pressure. Our call for clarity on the impending transition is made in good faith and in line with our duty to uphold institutional continuity and public confidence in the administration of justice. At this critical juncture, what is required is clear leadership and timely, decisive action.
The Malaysian Bar calls on the authorities responsible to immediately announce the course of action — whether it be an extension or an appointment — in accordance with the Constitution and the Judicial Appointments Commission process. We agree in principle that judicial independence must be safeguarded from political interference and undue lobbying. However, we caution against conflating legitimate institutional concern and public accountability with politicisation.
There is a meaningful distinction between supporting or objecting to a particular person and calling out a systemic failure that may erode confidence in the rule of law.
Judicial independence is not merely an ideal to be praised in speeches; it must be protected through conduct and decision-making that inspires trust, not suspicion.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar30 June 2025
1 “PM pushes back against lobby to extend CJ’s term, calls it politicisation”, Malaysiakini, 30 June 2025. - Malaysian Bar Website
Malaysian Bar Urges Transparency Over Alleged Judicial Interference, Considers Court‑Ordered Disclosure of JAC Records 25 Jun 2025 3:19 pm
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The Malaysian Bar is deeply concerned with the recent media report1
alleging that a senior judge was questioned by the Judicial
Appointments Commission (“JAC”) on the issue of possible interference in
judicial affairs. This report, if accurate, raises serious questions
about the integrity and independence of our Judiciary — an institution
that must remain free from any form of influence or manipulation.
The Malaysian Bar is of the view that allegations of judicial interference go beyond the confines of a mere disciplinary matter. They strike at the heart of public confidence in the administration of justice. The issue here is not only about propriety, but also about the structural health and independence of our Judiciary. In the light of this, and in the interest of public accountability and transparency, the Malaysian Bar will be pursuing the necessary orders to obtain the minutes of the said JAC meeting. This is necessary to ascertain the facts, to preserve institutional integrity, and to ensure that any necessary corrective steps can be taken without compromising the law.
Judicial independence is not negotiable. It is a constitutional guarantee and a pillar of our democratic framework. Any conduct — actual or perceived — that undermines this principle must be addressed swiftly and with full transparency. If the report is found to be untrue, that too must be clarified with equal urgency to avoid unwarranted damage to the reputation of our Judiciary.
The Malaysian Bar calls upon all institutions involved to treat this matter with the seriousness it deserves. We reaffirm our commitment to the rule of law and to the protection of judicial independence, without fear or favour.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
25 June 2025
1 “JAC questioned senior judge on alleged judicial interference, says source”, Free Malaysia Today, 24 June 2025. - Malaysian Bar Website
Judicial Extensions, Promotions and Appointments: The Nation Awaits 5 Jun 2025 6:08 pm
The Malaysian Bar is deeply concerned with the uncertainty surrounding the extensions of tenure for The Right Honourable Chief Justice Tun Tengku Maimun binti Tuan Mat, the Right Honourable President of the Court of Appeal Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim, and the most senior Federal Court Judge (other than the judicial Office Bearers) The Honourable Justice Tan Sri Datuk Nallini Pathmanathan1. This comes in the light of the reported2 six-month extensions granted to five other apex court Judges3.
While the maximum extension permissible is six months and is a matter of discretion, neither is it a reward. It is a responsibility to continue working for the benefit of the nation and the cause of justice. It is unusual for the Chief Justice, President of the Court of Appeal or senior Federal Court Judge not to be granted 6-month extensions. These extensions are far from ceremonial and afford these senior judges, amongst others, time to conclude a lifetime of service to the Bench and nation and to get their judicial affairs in order. Further, such extensions can also be used productively to conclude cases pending before them and the time to complete the writing of their judgments, amongst others.
These three judges exemplify the critical qualities essential for appellate and apex court positions: unwavering judicial independence and integrity, upholding the rule of law without fear or favour, administrative competence, public credibility, and a deep commitment to constitutional principles and human rights. The Malaysian Bar maintains4 that all future judicial and Judicial Appointments Commission (“JAC”) appointees should embody these attributes, whilst also taking into consideration seniority and diversity ie gender and ethnic representation.
The cumulative effects of these extensions are also crucial in the light of the vacancies in the Judiciary, particularly in the superior and apex courts. These extensions would enable the Federal Court to continue to function at the highest levels and is essential in upholding the rule of law and maintaining public confidence in the Judiciary. A judiciary that operates at less than full strength, particularly at the appellate level, risks the erosion of judicial efficiency, the accumulation of backlogs, and delays in the dispensation of justice and, if left unchecked, a denial of justice itself.
According to the JAC5, there are at present 29 vacancies among superior court Judges: two in the Federal Court, three in the Court of Appeal, and 24 in the High Courts (comprising 13 in Malaya and 11 in Sabah and Sarawak). There does not appear to be ready data for projected vacancies (taking into account impending retirements at all levels) but it is clear that the numbers would be even greater than this.
|
Court Level |
Total Positions |
Current Judges |
Vacancies |
|
Federal Court |
11 |
9 |
2 |
|
Court of Appeal |
32 |
29 |
3 |
|
High Court (Malaya) |
75 |
62 |
13 |
|
High Court (Sabah & Sarawak) |
19 |
8 |
11 |
|
Total |
141 |
112 |
29 |
Coupled with the fact that six Federal Court Judges are projected
to retire by the end of this year (of whom, even if three are extended,
all six would still retire by January and February 2026), the Judiciary
faces an impending leadership vacuum as all four Office Bearers of the
Judiciary fall within this category. The delays in appointments,
promotions and extensions are no longer tenable and must be addressed
posthaste.
The Judiciary is one of the three branches of the Government, the others being the Legislature and the Executive. Modern constitutional democracies the world over recognise these three branches of Government as being necessary in upholding the Separation of Powers and the Rule of Law. The independence of the judiciary is a critical tenet in upholding this constitutional equilibrium. The vibrancy and robustness of modern democracies are measured by adherence to such constitutional principles.
The granting of extensions to some judges but not others could lead to unwanted and unfounded adverse perceptions, particularly as they relate to the most senior Judges of the Federal Court. Any perceived erosions of our constitutional infrastructure may not only adversely affect the rule of law but harm a country’s commercial and economic attractiveness for investment and business.
The Malaysian Bar calls upon the JAC and all relevant decision-makers to ensure that all appointments, extensions, promotions and the process of identifying and recommending the incoming Office Bearers of the Judiciary and the appointments and promotions of appellate and apex court Judges continue to reflect the highest standards of transparency, integrity, objectivity, and fidelity to the Constitution. These high judicial offices demand character, integrity, credibility, and an unwavering commitment to justice — Malaysia deserves no less.
Anand Raj
Vice-President
Malaysian Bar
5 June 2025
1 “Tenures of Chief Judge of Malaya, two Federal Court judges extended”, The Edge, 13 March 2025.
2 “Extend Tengku Maimun, Abang Iskandar and Nallini's tenures, human rights society urges govt”, The Edge, 22 May 2025.
3 The Right Honourable Chief Judge of Sabah and Sarawak Tan Sri Dato’ Abdul Rahman bin Sebli, The Right Honourable Chief Judge of Malaya Tan Sri Hasnah binti Dato’ Mohammed Hashim, and Federal Court Judges Tan Sri Datuk Harmindar Singh Dhaliwal, Dato’ Zabariah binti Mohd Yusof, and Datuk Hanipah binti Farikullah.
4 “Press Release | The appointment of Tan Sri Hj Mohd Dzaiddin Hj Abdullah as the Chief Justice of the Federal Court” by Haji Sulaiman Abdullah, Malaysian Bar website, 20 December 2000; “Press Release | Seniority Should Be the Overriding Factor in Elevation of Judges” by Abdul Fareed Abdul Gafoor, Malaysian Bar website, 29 November 2018;“Press Release | Seniority important factor in judicial appointments” by Ambiga Sreenevasan, Malaysian Bar website, 5 April 2007.
5 Statistics on Post and Vacancies of Supreme Court Judges, Judicial Appointments Commission Malaysia website, retrieved 4 June 2025. - Malaysian Bar Website
Bar Council's Comments on the Judicial Appointments Commission Bill 2008 17 Dec 2008 12:00 am
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;
• To ensure transparency at all levels of the appointments process;
• To ensure representation of various stakeholders in the judicial system on the JAC;
• To ensure meaningful consultation with other concerned parties in the judicial appointments process;
• To ensure accountability of those involved in the process; and
• To clearly define criteria for the selection and promotion of judges.
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. • 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. • 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. • 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. • 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. • 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. • 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. • 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. • 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. (ii) Determination of allowances for the JAC. (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. 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. 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. 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. 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. Clause 7 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. Clause 9 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. Clause 10 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. 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. 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. Clause 11 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. Clause 13 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. Clause 14 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. Clause 15 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. Clause 18 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. Clause 22 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.
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. Clause 23 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. Clause 24 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. 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. 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: (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
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. Clause 27 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. Clause 28 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. Clause 29 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. Clause 30 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. Clause 37 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. Dato’ Ambiga Sreenevasan
President
Malaysian Bar
16 December 2008
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