Further reforms to the judicial appointment process should involve reducing the prime minister's powers to advise the Yang di-Pertuan Agong on the final selection of judges, according to panellists at a discussion organised by Bersih today.
The discussion followed the electoral watchdog's launch of its research report titled "Safeguarding Judicial Independence: Appointment, Promotion and Removal of Judges in Malaysia", written by lawyer Serene Lim.
Former Malaysian Bar president Steven Thiru said while the formation of the Judicial Appointment Commission (JAC) in 2009 brought improvements to the process, desired changes to safeguard judicial independence remain.
"What we have now and I think it is quite obvious, is the prime minister's unrestrained power of veto in the (JAC) Act, which is then concretised in the Constitution.
"This can have the effect of depriving worthy candidates of being appointed to the bench.
"So long as you have this, what I call as the unrestrained power of veto by a prime minister, it is always going to erode the separation of powers, it is always going to militate (prevent) against the appointment of independent thinking persons to the bench, and you are not going to attract the brightest minds to it," said Steven.
Noting that the JAC has no "final say" on the individuals appointed, Steven said its members had made some notable recommendations from the Malaysian Bar and the Attorney-General's Chambers.
"But that (process) can't be left to chance.
"You need to fix the system. You should not be restrained by the fact that independent decision making will be punished, as opposed to being lauded," said Steven, adding that it should be a natural progression for qualified legal practitioners to sit on the bench.
He suggested that the JAC be empowered beyond just making its recommendations, to also nominate the superior court judges up for appointment.
This was listed as a recommendation in Bersih's report, for JAC's mandate to include, through an amendment of Article 122AB of the Federal Constitution, the nomination for appointment of judicial commissioners to the Yang di-Pertuan Agong.
Bar Council member Honey Tan also noted JAC's role as an advisory council, rather than a body empowered to appoint judges.
"The sad thing is, the appointment of judges remains very political.
"The fact that we have a set of very good judges, especially at the appellate court now, I think is a function of the fact that we had quite an open and diverse government under Pakatan Harapan, before the change.
"We really need to take this (appointment) out of the hands of the prime minister because that's just too much to chance," she said.
Academician Prof Shad Saleem Faruqi, a former JAC member under Harapan's tenure, agreed with the view that the commission is an "imperfect institution" but said it had functioned with understanding on the need for consultation before any decisions were made.
On judicial independence, the Universiti Malaya law professor said the issue extends beyond independence from the executive, to include safeguards from other external and internal threats that could influence a judge's decision.
He added that more discussions are needed on how to ensure judges can transcend race, religion, gender, and economic status.
"Any report on judicial independence must concern itself with the inevitable elitist nature of the judiciary and its possible inability to identify with the problems of the poor, the marginalised, and those suffering from systemic institutionalised injustices.
"Historically, it is quite clear superior court judges here and everywhere else are quite indifferent to the plights of the poor," Shad said.
The hour-long panel discussion was moderated by lawyer New Sin Yew.
In closing the session, Bersih chairperson Thomas Fann said the research report was commissioned as part of a long-term reform initiative, beyond reacting to current events affecting the country.
"We want to find out what it would take to strengthen the system.
"We should not be living at the mercy of politicians who come and go," he said, adding that the recommendations could serve as a reference for future stakeholders.
Key recommendations were also made on the matter of the removal of judges, the appointment of subordinate court judges, and reforms to the nine-member JAC panel. - Mkini
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