Building confidence in the Judiciary
Barely a week after the Judicial Appointments Commission turned eight years old on Feb 2, it was hamstrung; it is still waiting for positions to be filled so that it can commence recommending potential judges.
THE sacking of Tun Salleh Abas as Lord President in 1988 put the spotlight on judicial appointments.
The fairly transparent and consultative nature of the then selection process all but disappeared after Salleh’s dismissal, raising questions about the independence of the Judiciary.
Public confidence waned, as the Executive seemed to be involved in the promotion of some judges over others and certain new appointments were made.
The setting up of the Judicial Appointments Commission (JAC) on Feb 2, 2009, two months before Tun Abdullah Ahmad Badawi’s premiership ended, rebuilt public confidence a little, despite concerns of continuing Executive control.
Under the JAC Act, the commission selects candidates for Prime Minister Datuk Seri Najib Tun Razak to consider and recommend to the Yang di-Pertuan Agong.
But since Feb 9, the JAC has been hamstrung; it cannot meet the minimum quorum of seven.
The JAC comprises the top four judges in the judiciary, one other Federal Court judge, and four eminent persons appointed by the Prime Minister. The second term for the existing eminent persons expired on Feb 9, and their replacements are not in place. (See table.)
As mandated under the JAC Act, the premier is supposed to consult the three Bar associations and the Attorney-General on their appointment.
On Feb 7, The Star Online reported Attorney-General Tan Sri Mohd Apandi Ali, Bar Council chairman Steven Thiru, Sabah Law Association president Brenndon Keith Soh and Advocates Association of Sarawak president Ranbir Singh Sangha as saying that they had not been consulted by Najib or his office.
On Feb 16, JAC secretary Datuk Hamidah Khalid told The Star “the process for appointing the eminent persons has commenced”.
“The last four eminent persons were at the meeting on Feb 3. The new eminent persons will be appointed in time for the meeting in March.”
The premier’s officers should have begun the process of identifying and appointing new eminent persons months back. According to the JAC website earlier this month, of the 120 posts in the superior courts, 26 are vacant – five in the Court of Appeal and 21 in the High Court.
The Federal Court bench is full. But several senior judges are due to retire. Chief Justice Tun Arifin Zakaria retires the end of March. Court of Appeal President Tan Sri Md Raus Sharif retired on Feb 4, but was given a six-month extension. The Chief Judge of Malaya retires this year and the Chief Judge of Sabah and Sarawak in 2019.
All the current judges in the highest tier will retire within two years, with the exception of Tan Sri Azahar Mohamed who has until 2022. If rumours in legal circles are true, Md Raus takes over from Arifin in April, and Azahar becomes the second or third in line for the top post.
The appointments will be made after the King and his brother rulers have considered Najib’s advice, as per the Federal Constitution.
The Judiciary is the third arm of Government and it doesn’t speak well for claims of good governance and integrity if the Government sets up democratic institutions but scuppers their performance by delaying appointments to them.
This has happened with Suhakam (Human Rights Commission of Malaysia) commissioners – a 45-day delay in 2010, 38 days in 2013, and 57 days in 2016.
Former Attorney-General Tan Sri Abu Talib Othman says the JAC was the result of a recommendation by Suhakam when he was its chairman.
“Because of the importance of the JAC, one would expect the authorities to respect a law passed by Parliament. The new eminent persons should be appointed as soon as practicable.”
The delay in future appointments can be easily avoided if government officials keep track of the contract dates. Surely that’s not the prime minister’s job.
When contacted, Datuk Paul Low, Minister in the Prime Minister’s Department responsible for promoting governance, integrity and human rights, replies: “The appointments are at the discretion of the Prime Minister.
“I’m not sure what happened because I’m not directly involved.”
Minister in charge of law Datuk Seri Azalina Othman Said did not respond to queries.
The United Kingdom expressly excludes them. A JAC is to make the judicial appointments process independent of the Executive. This would be defeated if the PM has nominees in the JAC.
Steven Thiru
After eight years of existence, the Bar would like to see a revamp of the judicial selection process.
Although there is a provision for consulting various stakeholders, Bar Council chairman Steven Thiru notes that there is still a possibility that former members of the Executive and public service may sit on the JAC.
“The United Kingdom expressly excludes them. A JAC is to make the judicial appointments process independent of the Executive. This would be defeated if the PM has nominees in the JAC.”
In May last year, the Bar Council submitted proposals to the JAC for reform and several best practices. Among them were:
> South Africa: its Constitution requires the advocates’ and attorneys’ professions to nominate from within their group persons to sit on the commission.
> Britain: 12 commissioners, including the chairman, are selected on merit, through fair and open competition and the remaining are elected by the Judges’ or Tribunal Judges’ Councils.
“There should be gender, racial and religious diversity to reflect the make-up or fabric of 21st century Malaysian society in the lay members appointed,” says Thiru.
He points out there is also no provision in the JAC Act to take diversity into account when selecting judges.
While the public might like the JAC to have the final say in the names to be presented to the King, it is generally known the premier is not likely to give up his control over that.
Thiru notes that a Constitutional amendment is required if the people want the Prime Minister’s unfettered prerogative in the consultation and selection process to be removed.
“One change could be that whenever the PM rejects a candidate or requires the JAC to reconsider a candidate, he must give his reasons for doing so in writing.”
He adds that to select office bearer positions in the judiciary, a special selection panel should be formed comprising the Chief Justice, the two most senior members of the superior courts who are not candidates for the position, and all eminent persons on the JAC.
As for making appointments from the Malaysian Bar or those practising in Sabah and Sarawak, Thiru says the respective Bar associations must be consulted.
These sound like perfectly reasonable suggestions for the JAC, especially the in-coming Chief Justice as chairman of the JAC, to recommend to the Executive; they will help build public confidence in the Judiciary.