Urgent need to reform judiciary appointment processes

The Malaysian Bar congratulates Mohd Hishamudin Md Yunus, Linton Albert, Mah Weng Kwai, and Shad Saleem Faruqi on their appointments as members of the Judicial Appointments Commission (JAC).

Public confidence in the judiciary has seen significant erosion over the years, which has been a matter of immense concern to the Malaysian Bar. We welcome the new appointments, and look to these appointees to carry out their duties with independence and integrity.

A meticulous, stringent and impartial selection of judicial candidates is crucial to safeguarding the independence of the judiciary, which will, in turn, restore — and ultimately elevate — much-needed public confidence in the judiciary.

The Malaysian Bar has long advocated a JAC whose membership is representative of all the stakeholders in the administration of justice. We had voiced our concerns about the Judicial Appointments Commission Bill, which was passed as the Judicial Appointments Commission Act 2009 (JAC Act). Some of those reservations remain.

In this respect, we note that the representation on the JAC is currently tipped in favour of the judiciary, as prescribed by Section 5(1) of the JAC Act. That provision permits the composition to be balanced by the appointment of four “eminent persons” who are not members of the Executive or any other public service.

The Malaysian Bar is of the view that the four “eminent persons” of the JAC ought to be selected from the Attorney General’s Chambers, Bar Council, Advocates Association of Sarawak, Sabah Law Society, academia, and civil society, and that there should be greater gender and ethnic representation.

Future appointments of JAC members should strive for inclusivity and diversity, and move away from being dominated by serving and retired judges, whose views would be adequately represented by the five mandatory members of the judiciary, four of whom are the office bearers of the judiciary.

The raison d’être of the JAC is to ensure the separation of powers between the judicial, executive, and legislative branches of government. The dire need for this has been clearly underscored by the lessons gleaned from the past — such as the 1988 judicial crisis, and the events that led to the establishment in 2007 of a Royal Commission of Enquiry on the “video clip recording” — and, more recently, the separate revelations by a Court of Appeal Judge and a lawyer regarding alleged judicial interference, which has taught us that what ails our current system appears to stem from Executive interference, and a lack of transparency and accountability, in the judicial appointments process.

In order to restore public trust and confidence in the judiciary, there is an urgent need to reform the appointment processes for members of both the JAC and the judiciary. Clearly defined criteria for the selection and promotion of judges, meaningful consultation with all relevant stakeholders, and accountability of those involved in the appointments processes, are critical.

The JAC must be an institution that is absolutely independent, and stand the test of time no matter which individual helms the top office of the state. An effective and unimpeachable JAC of true substance is indispensable to reinstating and upholding the integrity of the Malaysian judiciary.
 

---

The writer is president of the Malaysian Bar. - Mkini