Reforming the judiciary starting with the JAC Act

ADUN SPEAKS | The Judicial Appointments Commission Act 2009 (Act 695), in short, places the nation’s judiciary in a conundrum by vesting absolute powers in the prime minister to appoint and remove members of the said commission.

Although the primary intention of the Judicial Appointments Commission is to uphold the independence of the judiciary, nevertheless, the governing act itself does not empower its members with an effective check and balance mechanism.

This sort of political patronage renders Montesquieu’s doctrine of separation of powers between the judicial, executive and legislative branches of the government ineffective and turns the selection process of judges into a sham.

Although among the appointments of four eminent persons and one Federal Court judge as provided in Section 5(1) of the JAC Act includes a Malaysian Human Rights Commissioner, a former Malaysian Bar president and also a constitutional law expert, the final approval regarding the appointment of judges to the superior courts should not be left to the behest of one person, namely, the prime minister.

Mohamed Suffian bin Hashim noted in The Constitution of Malaysia: Its Development: 1957 – 1977 that: “Judicial independence has always been a pillar of the constitution. Judges do not take orders from Parliament, nor do they from the prime minister of from anybody in government. Judges are not civil servants who quite properly take orders from ministers and their seniors in the service.”

Section 5(1) itself is flawed as only four members of the commission are included by default while five are appointed at the behest of the prime minister. When five out of nine members of the Judiciary Appointment Committee are all handpicked by the prime minister, it becomes tremendously impossible for the judiciary to be impartial and partisan to political inclinations.

As observed through history, the 1988 saga that involved Mohd Salleh Abas should serve as a stern reminder that our path towards judiciary reform must no longer be stalled. What we experience today is the result of a failed judiciary where judges bowed to their political masters in order to gain advancements and promotions.

For a respectable, independent and impartial judiciary, there must be a strong political will to carry out such reforms to ensure that political influences are kept at bay. The JAC Act 2009 has, in effect, usurped both the powers of the chief justice to propose the appointment and promotion of judges, and further remove the powers of the king to being simply a rubber stamp, by empowering only one person, that is the prime minister.

If granting favours towards political masters is the only means to secure a judge's position, we have not only failed our ourselves but our future generations. What we need is to abolish this feudalistic system where a few favoured candidates receive appointments through invitations and secret deals.

With this, we will rob our children of a future that distinguishes right from wrong as we have been teaching them that wrongs are right. We will become a society devoid of conscience and ethics, and if we do not make any effort to turn around now, I fear, we will lose all our good senses.

Palace of Justice, Putrajaya

The Westminster parliament enacted the Constitutional Reform Act in 2005, an independent body for the appointment of judges to ensure that the executive branch does not interfere with the judicial appointments process.

Public consultation

Members of their Judicial Appointments Commission are selected through an open competition, other than the three members from the judiciary. We should perhaps adopt this system where vacancies for judges are publicly advertised and candidates are vetted through interviews with the selection panel, to gauge their merits, competency and fairness in executing justice.

In India, the National Judicial Appointments Commission (NJAC) Act 2014, was approved following amendments made to India's constitution (also known as the 99th amendment), but was highly criticised for its executive involvement which impinged upon the independence of the judiciary and violated the principle of the separation of powers between the executive and the judiciary. In October 2015, the Indian supreme court struck down the act as “unconstitutional.”

Both India and Malaysia are similar, being ex-British colonies, and having adopted the British legal system. If the UK, India and other countries are progressing towards a reformed judicial system, there is no reason why Malaysia should still remain outdated.

According to M Ehteshamul Bari and Safiz Naz (2015): “Since the Federal Constitution of Malaysia has not empowered the Parliament to enact a law providing for the establishment of a Judicial Appointments Commission, it also appears that the Judicial Appointments Commission Act 2009 is an invalid piece of legislation.”

In Islamic tradition, Muslim rulers hold public consultation with the people who were represented by scholars who graduated from the madrasah and were well-versed with the principles of Islamic jurisprudence or Usul al-fiqh. Thus, even the sultan does not have absolute power and is always balanced by the ulama and neither has absolute power over the law.

We must, at all costs, regain the public’s confidence in our judiciary and select judges through an independent commission where the selection panel consists of learned people who have the highest levels of integrity, and without politicians’ involvement in the selection process.

The thirty lost years from 1988 till 2018 have set us back in terms of progress in thought and critical thinking. An untainted and independent Judicial Appointments Commission will bring back impartiality and shine to our country's judiciary.

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JASON ONG KHAN LEE is PKR state assemblyperson for Kebun Bunga in Penang. - Mkini