Judicial appointment ripe for review

A proper system of appointing judges is an important prerequisite to the rule of law.

THE judiciary is a safety valve without which the rule of law cannot survive. An independent, impartial, honest and competent judiciary is necessary for the strength of a democratic constitutional order. A proper system of appointment of judges is an important prerequisite.

In Malaysia, the selection and appointment of superior court judges is almost entirely in executive hands. Till 2009, there was no special body to select and nominate candidates for judicial appointments. When a judicial vacancy arose, other than to the post of the Chief Justice of the Federal Court, the Constitution mandated the following procedures:

1. The Prime Minister took counsel with the Chief Justice (CJ) under Article 122B(2).

2. The President of the Court of Appeal and the Chief Judges of the High Courts were required to be consulted by the PM on appointments to their courts – Art 122B(4).

3. For the appointment of the Chief Judge of the High Court in Sabah and Sarawak, the premier and the chief minister of the states were also consulted – Article 122B(3).

4. The PM then advised the Yang di-Pertuan Agong.

5. His Majesty was required to act on the PM’s advice under Article 40(1) and 40(1A) but only after “consulting” the Conference of Rulers – Article 122B(1). The role of the Conference was (and is) one of check and balance. It has the power and duty to scrutinise, call for further information, delay, caution and warn.

However, it does not have the power to veto the PM’s proposals. Consultation is not the same thing as consent or compliance.

6. All in all, although the PM was required to inform himself of the views of the Chief Justice, the President of the Court of Appeal, the Chief Judges of the High Courts, the premier and chief minister of Sarawak and Sabah, the Conference of Rulers and the Yang di-Pertuan Agong, in the last resort the PM could insist on his choice.

7. It was also noteworthy that till 2009, the above extensive consultative procedure did not apply to the appointment of the Judicial Commissioners under Article 122AB.

Fortunately, the judicial appoint­­ment procedure was significantly democratised by the passage of two laws in 2009 – the Judicial Appointments Commis­sion (JAC) Act 2009, and the Judicial Appointments Commis­sion (Selection Process and Method of Appointment of Judges of the Superior Courts) Regu­lations 2009. An advisory Judicial Appointments Commission (JAC), headed by the CJ, was set up to vet all applications and propose nomi­nees to the PM.

Though the JAC is an imperfect institution, its parent law has many sterling provisions:

8. In Section 2, it lays down the PM’s duty to uphold the indepen­dence of the judiciary and to have regard to the need for public interest to be represented in regard to matters relating to the administration of justice.

9. In Section 23(1), it lays down an admirable list of selection criteria for judges.

10. The JAC facilitates consultation between the five judges on the JAC and the four eminent members on the suitability of candidates for judicial office.

11. Vacancies are advertised. Candidates are allowed to apply.

If data is collected, it may be found that since the JAC’s inception, the ethnic, gender and regional diversity on the Bench has been affected positively, especially since 2018. Previously, the bulk of the appointees used to come from the Attorney-General’s Chambers and the Judicial and Legal Service. Now, many more practising lawyers are being elevated to the Bench.

Since 2009, the JAC has recommended 521 judicial appointments, including those of four CJs. Its procedures and deliberations promote openness, inclusiveness, transparency and discussion before decision. These are the hallmarks of democracy and good governance. Perhaps it is not just a coincidence that in the last decade, there has been some mea­sure of a judicial renaissance.

At the same time, it must be noted that the flaws in the law are many.

The membership of the JAC is too judge-centred. Five out of nine members are from the Federal Court. The other four eminent persons are appointed by the PM but removable by him without any reasons being assigned.

Membership of the JAC is not inclusive enough. None of the Bar Associations are represented on the JAC. There should be guaranteed positions for a legal academician, an eminent human rights advocate, a representative of the aborigines or the natives of Sabah and Sarawak, and a women’s rights advocate.

The Commission’s main weakness is that it is a misnomer. It merely shortlists the candidates and has no power to make any appointments. Perhaps it should be renamed the Judicial Nomi­nation Commission.

Under S. 22(2), it recommends “not less than three persons for each vacancy in the High Court, and not less than two persons for each vacancy in other superior courts”.

What is even more discomforting is that under S. 27, the PM is entitled to reject the JAC list of nominations. He can request for two more names for his conside­ration with respect to any vacancy to the office of the CJ, President of the Court of Appeal, the Chief Judges of the High Courts, and judges of the Federal Court and the Court of Appeal. The Commis­sion is required to comply.

Another controversial issue is about the constitutionality of the JAC. On April 8, an originating summons was filed by lawyer Datuk Wira Syed Amir Syakib Arsalan seeking a declaration that the JAC Act 2009 is unconstitutio­nal on many grounds, among them, that it is inconsistent with Article 122B of the Federal Consti­tution, which gives the PM sole power to select and nominate candidates to the Yang di-Pertuan Agong.

Perhaps S. 21(1)(a) of the JAC Act could also be invoked. Under this section, the JAC is tasked with the job of recommending candidates for the PM’s consideration.

However, the constitutional right to advise the PM on judicial appointments belongs to the CJ, the President of the Court of Appeal, the Chief Judges of the High Courts, and, in appropriate cases, the premier and chief minister of Sarawak and Sabah. The JAC, legislated by an ordinary sta­tute, cannot override the Cons­ti­tution and usurp the constitutio­nal function of those authorised by the Constitution.

If the originating summons succeeds, it may be necessary to amend the Constitution to “constitutionalise” the JAC, as is the case with many other commissions under the Constitution.

The JAC, as a collective body on which all the top judges are represented, should be empowered to represent the CJ, the President of the Court of Appeal and the Chief Judges of the High Courts as the sole adviser to the PM on judicial appointments.

That would leave unmet the requirement for the PM to consult the premier and the chief minister of Sarawak and Sabah.

The PM or the JAC should, therefore, be required to continue to honour this special right of our Borneo states.

In summation, it needs to be pointed out that despite the many improvements ushered in by the JAC Act, the PM retains absolute power to select the names to be sent to the Yang di-Pertuan Agong and the Conference of Rulers.

The PM’s power of rejecting the JAC’s recommendations renders the lengthy process of selection by the JAC a possible waste of time and resources.

In the matter of judicial appointments and promotions, the political executive’s will should not prevail over the expert opinion of the JAC. The recommendations of the JAC should be binding on the PM subject, of course, to executive scrutiny and request for further information.

This proposal will be in line with the trend in many democracies of adopting an independent appointment process.

We should emulate best practi­ces from other shores even if that requires an amendment to our supreme Constitution.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is a principal research fellow at Universiti Malaya. The views expressed here are the author’s own.