Remove PM's power to appoint judges, expert says

 

The Judicial Appointments Commission’s (JAC) decisions should not be centred on the prime minister’s approval, said members of a Bar Council forum today. 

According to Bar Council civil law and law reform committee co-chairperson M Ramachelvam, the Federal Constitution should be amended so that the prime minister is required to carry out the JAC’s recommendations.

Universiti Malaya constitutional law professor Shad Saleem Faruqi said the chief justice should be the one to advise the Yang di-Pertuan Agong on judicial appointments instead of the prime minister.

He further recommended that the JAC Act 2009 be placed under the Constitution.

He cited Yang Dipertuan Besar of Negeri Sembilan Tuanku Muhriz Tuanku Munawir, who made a similar suggestion in 2022.

PM has ‘absolute power’

Shad told the audience at Wisma Badan Peguam in Kuala Lumpur that the chief justice, not the prime minister, should have the power to appoint members to the JAC.

“The prime minister sadly is not bound by the advice of the chief justice or the JAC on the names that have been shortlisted.

“Despite the many improvements ushered in by the JAC Act, the prime minister retains absolute power to select the names to be sent to the Yang di-Pertuan Agong.

“In fact, he has the power to reject the names, and call for new names: in the case of high courts, three new names; in other cases, two new names.

“So he has virtually absolute power to select the names to be sent to the Agong and the Conference of Rulers. 

“The prime minister’s power of rejecting the chief justice and the commission’s recommendations renders the lengthy process of selection by the JAC a waste of time and resources,” he said. 

However, lawyer and activist Lim Wei Jiet cautioned that the executive organ is allowed a say in judicial appointments in other countries as a form of check and balance against the judiciary. 

This is due to the separation of powers, he added. 

JAC’s ‘elitism problem’

Meanwhile, Shad suggested a change in the composition of JAC members, partly to combat the commission’s “inevitable” elitism.

Some members of the judiciary have an inability to identify with the problems of minorities and marginalised groups, he explained.

“How then can we ensure that judges transcend their personal limitations in interpreting the live dramas that unfold before them in the court?” he asked.

The law is capable of many “glorious interpretations” but many judges choose to interpret the law in a way that devastates those seeking justice, such as Orang Asli groups, he added.

Hence, he called for JAC members to be selected based not only on qualifications and experience but also on involvement in activities that reflect social conscience.

Besides that, the prime minister should not have the power to dismiss the JAC members that he has appointed without the opportunity for a hearing, Shad said. - Mkini