The Palace of Justice in Putrajaya (public domain. Source: wikipedia.org)
PETALING JAYA, 12 Dec 2008: The Judicial Appointments Commission (JAC) Bill that was tabled for first reading in Parliament on 10 Dec is a disappointment, said lawyers and ex-judges.
Several aspects of the bill did not address the concerns of the judiciary, namely the interference of the executive in judicial appointments, and the promotion of judges.
Former Court of Appeal judge Datuk Shaikh Daud Shaikh Ismail told The Nut Graph the bill does not make judicial appointments more transparent.
He said the prime minister of the day would still have a hand in the commission’s decision.
“Look at Clause 27 of the bill. It undermines the work of the commission. (The clause provides that if the prime minister is unhappy with the commision’s choices, he can request that it selects and recommends another two names for judicial appointments.)
“It means that the prime minister can indirectly tell the members that he doesn’t like the commission’s choices,” he explained.
Datuk Param Cumaraswamy, the former United Nations special rapporteur on the independence of judges and lawyers, also said the provisions in the bill “could lead to executive interference into the independence of the judiciary”.
He noted that the bill, which allows the executive to appoint and remove any of the four non-judicial members of the commission without giving a reason, means the independence of the judiciary was still dependent on the personality of the prime minister in power.
“It must be stressed that the present prime minister may be well-meaning and may not abuse his powers.
“We must learn from experiences of the past. What is needed is a legislation which will insulate the judiciary as an institution, and individual judges, to secure their independence,” he said in a statement.
The Malaysian Bar also feels that the bill provides too much power for the prime minister, especially to amend provisions in the act in the first two years.
“This is an unusual provision that takes the power of legislating away from Parliament,” said the bar’s president, Datuk Ambiga Sreenevasan in a statement.
“We are concerned that some of the government’s proposals appear to legalise and reinforce the control of the executive over the judicial appointments process. Once it is passed, the power of the executive over the judicial appointments process will have the force of law,” she added.
The ambiguity of some of the wordings in the bill and its failure to define crucial terms properly also received some criticism.
Shaikh Daud said it is very disappointing that the bill is not specific about the promotion of judges.
He hoped that the commission’s responsibility does not just stop at the initial stage of appointing judges, because the promotion of judges is one of the grave concerns of the judiciary.
“The bill does talk about promotion of judges in an indirect way but it is so ambiguous,” complained Shaikh Daud.
Param said the lack of proper definition of certain terms leaves the bill open to abuse.
Malaysian Houses of ParliamentHe pointed to Clause 5(f) which allows the prime minister to select four non-judicial members to be in the commission after “consulting” the bar associations in the country.
“The word ‘consultation’ is not defined,” he said.
“Experience has shown in the past how the process of consultation between the prime minister and the Conference of Rulers over judicial appointments was abused by one prime minister.
“The process of consultation should not be seen as a sham,” he stated.
Param also said the Federal Constitution must be amended to entrench the independence of the judiciary.
“Without amending Article 121 of the constitution, to restore the doctrine of separation of powers and confer the judicial power on the courts, judicial independence cannot be secured by merely conferring on the chief executive of the government to uphold judicial independence,” said Param.
Ambiga also called for a constitutional amendment to ensure that the JAC would be completely independent.
She added that the Bar Council would be studying the bill further and preparing a comprehensive memorandum.
