Judges must stay neutral

An independent judiciary is a safety valve without which the rule of law cannot thrive and survive

AT the heart of constitutional governance is the issue of who should select and appoint superior court judges.

> Should judges themselves have the final say in the selection of the judiciary?

> Should the executive retain decisive control as in most countries today?

> Should the legislature be involved as in the United States and Germany?

> Should judges be elected?

> Or should there be a hybrid and independent mechanism that draws on the combined wisdom and experience of several bodies?

Selection by senior judges: India offers a remarkable example of judicial primacy in the matter of appointments. Under the Indian Constitution, the power to appoint belongs to the president of India after “consultation” with the chief justice.

In the case of Supreme Court Advocates-on-Record Association v Union of India (1993), the Supreme Court held that “consultation” means “compliance”.

The judiciary’s primacy under this “Collegium System” was reaffirmed in the Second Judges’ Case and was further entrenched when the National Judicial Appointments Commission Act 2014 was struck down in a case decided in 2015. The court held that judicial primacy in the matter of selection was integral to the basic structure of the Indian Constitution.

Advocates of judicial primacy in the selection process contend that the judiciary must be protected against political appointments. Judges are uniquely positioned to assess the professional competence, integrity and temperament of candidates for judicial appointments. Evaluation by brother and sister judges ensures that appointments are based on merit rather than political favouritism.

An independent judiciary, secured through judicial control of appointments, can ensure that the government remains subject to legal limits.

However, the “collegium system” in India has often been criticised as lacking in transparency and accountability, suffering from nepotism and favouritism, persistent judicial vacancies, gender and diversity deficits – especially in matters of caste – and non-transparent transfer of judges. In response, one can point out that the same can happen if the executive is in control.

Mixed executive and parliamentary control: Proponents of executive participation argue that the executive derives its mandate from the electorate and therefore carries democratic legitimacy. In countries like the US, federal judges are nominated by the president and confirmed by the Senate.

This mechanism ensures that the vast but unelected judicial power remains indirectly accountable to the people. Moreover, the executive can ensure that the bench reflects regional, gender, religious and ethnic diversity – concerns that the judiciary, left to itself, might overlook. Exclusive judicial control may produce a self-perpetuating elite resistant to reform, a “judicial aristocracy” detached from public sentiment as is allegedly the case in India.

However, critics of executive dominance argue that if there is executive control, that risks “court-packing” – the selection of politically sympathetic judges as during US President Franklin Roosevelt’s 1937 plan to enlarge the Supreme Court.

Election by the legislature: In Germany, judges of the Federal Constitutional Court are elected – half by the lower house and half by the upper house. This process requires a two-thirds majority, ensuring cross-party consensus and preventing political capture.

Other federal judges are appointed through the Judges Election Committee, which includes both ministers and parliamentary members.

Independent commissions: Many modern democracies have sought to reconcile judicial independence with accountability through the creation of independent commissions.

United Kingdom: In the UK, the Constitutional Reform Act 2005 established the Judicial Appointments Commission (JAC), comprising 15 judges, lawyers and lay members. The role of the lord chancellor (law minister) is limited. He can accept the JAC’s recommendation or ask for reconsideration or reject the recommendation once (with reasons).

However, if the same candidate is renominated, the lord chancellor must accept the appointment. This ensures that political influence is minimal while retaining a constitutional check. Executive oversight is preserved without political capture.

Ireland: Ireland established the Judicial Appointments Advisory Board (JAAB) under the Courts and Court Officers Act 1995. The JAAB – composed of judges, the attorney-general and lay members – recommends candidates to the government, which retains the final power of nomination to the president. The Irish model thus blends professional assessment with democratic legitimacy, similar to the UK approach but with a stronger executive role.

France: In France, members of the judiciary are appointed through a constitutionally entrenched body under Article 65 of the 1958 Constitution, which submits proposals to the president, who generally acts on its advice. The president’s discretion is limited and judicial independence is reinforced by this body’s composition, which includes senior judges and lay representatives.

Malaysia’s Judicial Appointment Commission (JAC): In Malaysia, Articles 122B(1) and 122AB of the Federal Constitution vest the appointment power in the Yang di-Pertuan Agong (YDPA), who acts on the prime minister’s advice after consulting the Conference of Rulers. In 2009, the Judicial Appointments Commission Act 2009 (Jaca) introduced a recommending body (the JAC) to vet and shortlist candidates. However, the ultimate discretion remains with the PM. Though the JAC Act has had some laudatory impact, its provisions suffer from some flaws:

> Its recommendations are not binding on the PM who has wide discretion to seek two new names per vacancy (section 27). Further, section 28 generates the suspicion that the PM can reject again and again till he is satisfied.

> The JAC is too judge-centric and needs to be more inclusive. Out of nine members, five are serving judges – the Chief Justice as chairperson, the President of the Court of Appeal, the Chief Judges of the two High Courts and a Federal Court judge appointed by the PM. Section 5(1) should be amended to reduce the number of judges to the ex-officio four and to mandate that the membership be inclusive of at least one of the three Bars, academia, women, one learned non-legal person and one learned representative of a marginalised community.

> The JAC should be constitutionalised. As the law stands, the JAC takes over the constitutional functions under 122B and 122AB of the CJ, the President, the two Chief Judges, the Premier of Sarawak and the Chief Minister of Sabah to shortlist candidates.

> The advice of the JAC should be binding on the PM. However, as a check and balance, the PM should be entitled to request new names just once and not repeatedly as may be the case under Section 28 of Jaca.

> The appointment of JAC ­members should not be by the PM but by the YDPA on the advice of the CJ.

> The power to dismiss the five appointed members of the JAC should not be by the PM but by a tribunal headed by the CJ.

> There should be more transparency about the work of the JAC – the applications received and processed, and its recommendations and results. The obligation of secrecy in section 32 should apply only to other deliberations.

Conclusion: Neither total judicial control nor unchecked executive dominance is desirable. Both organs of the state must be subject to check and balance. A delicate compromise must be maintained.

The judiciary should have a role to identify and assess candidates on professional merit and integrity. The executive should ensure that appointments reflect democratic and societal considerations.

An independent commission should act as a buffer between the two, safeguarding both independence and accountability.

The process must not only produce competent and independent judges but also command the confidence of both the legal profession and the public.

A balanced, transparent and independent consultative appointment system best secures the independence of the judiciary, the legitimacy of the courts and the continuance of the rule of law.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Emeritus Professor at UiTM, former chair holder of the Tunku Abdul Rahman Foundation Chair at UM, current senior research fellow at UM and an adjunct professor at Unimas. The views expressed here are the writer’s own.