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Bar backs call to clip PM's power in appointing judges

The Malaysian Bar says the appointment of judges should always be free from the influence of the executive.

3 minute read
Malaysian flags wave in the breeze outside the Istana Kehakiman complex in Putrajaya which houses the Court of Appeal and Federal Court. Photo: Bernama
Malaysian flags wave in the breeze outside the Istana Kehakiman complex in Putrajaya which houses the Court of Appeal and Federal Court. Photo: Bernama

The Malaysian Bar has renewed its call for amendments to the Judicial Appointments Commission (JAC) Act 2009, where the review of provisions on the representation of stakeholders should be done by legal practitioners and the attorney-general, and that eminent persons under Section 5 of the JAC Act be selected through a set of criteria suitable for Malaysians across divides.

It also reiterated that the power of the prime minister in the judicial selection and appointment process under the JAC Act should be removed, to ensure the independence of the JAC to run its own affairs, with the possibility of involvement by a parliamentary select committee to provide checks and balance. 

"These reforms would be necessary to uphold the independence of the judiciary.

"It is therefore imperative that the government of the day that says it is resolute in good governance continues the way forward by having the political will to make the requisite amendments to the JAC Act and Article 122B of the Federal Constitution, to establish an independent judiciary for the sake of a proper democratic system within our country," Malaysian Bar president Karen Cheah Yee Lynn said in a statement today.

She also said the Malaysian Bar was always ready to assist in realising this initiative.
Cheah said the Malaysian Bar also lauded the call by the Yang Dipertuan Besar of Negeri Sembilan Tuanku Muhriz Tuanku Munawir at the 260th Conference of Rulers meeting yesterday, that five of the nine members of the JAC no longer be appointed by the prime minister so that its composition could be more balanced and does not carry the interest of any party.

She said the Malaysian Bar had in 2018 submitted a comprehensive paper to the Institutional Reforms Committee (IRC) to propose ideas to strengthen the democratic institutions in the country, including a review of the JAC Act.

"This initiative has a history even prior to 2018, as the Malaysian Bar has always had concerns relating to the process of the appointment of judges, which should always be free from the influence of the executive, because the underlying purpose behind the establishment of a JAC is to maintain the separation between the legislative, judiciary, and executive to ensure transparency at all levels.

"Over and above these criteria, the Malaysian Bar has continuously advocated that the overall composition of the JAC should reflect diversity and inclusivity, and as far as possible, mirror the demography of the general population in every aspect," she said.

She said if the composition of the JAC is reflective of Malaysian society, it would enhance public confidence and acceptance of the decisions made by the judiciary because these judges would essentially be representing and making decisions affecting the lives of all Malaysians.

She added that the Malaysian Bar has consistently called for the decentralisation of the power of the executive in key aspects of the judicial appointment process.  

"An example of the power of the executive in such appointments is reflected in Section 5 of the JAC Act which stipulates that five out of the nine members of the JAC – namely a Federal Court judge and four eminent persons – be appointed by the prime minister.

"The selection of eminent persons leaves open the possibility that former members of the executive and public service, members of Parliament and other politicians may sit on the JAC, and the Malaysian Bar reiterates that such possibility of appointments ought to be expressly excluded," she said.

Cheah said while the process of consultation for judicial appointment is carried out as provided for under Section 5(f) of the JAC Act, the express and written views or objections of the Bar Council on the suitability of candidates had never been translated into actuality.

"The views sought therefore appear to be no more than an exercise of dressing rather than that of substance.

"As such, the current call for JAC reforms is timely indeed," she added.