Justice For All Malaysia

No real reformation in Judicial Appointments

Posted on: December 11, 2008

JAC to remain firmly under PM’s thumb
Beh Lih Yi | Dec 10, 08 4:03pm
For all its heralded claims of independence, the proposed Judicial Appointments Council (JAC) will remain very much under the thumb of the prime minister in recommending the appointment and promotion of judges.

MCPX

Based on the 23-page JAC Bill tabled in Parliament for first reading this morning, the premier will have far-reaching powers from the appointment of commission members to the selection of judges.

He can revoke the appointment of anyone in the nine-member JAC at any time without having to give a reason.

He can also ask for further recommendations if he is not happy with the candidates recommended by the nine-member JAC to fill vacancies in the courts.abdullah ahmad badawi pak lah parliament pc 101208 04Under the proposed JAC structure, the prime minister will have final say on candidates recommended by the commission, when he advises the Agong on the appointment of judges.

All this comes despite the fact that the commission is meant to overcome current perceptions of undue influence by the executive in judicial appointments.

Prime Minister Abdullah Ahmad Badawi, who tabled the bill personally in the Dewan Rakyat, is seeking its passage by the end of the current session next Thursday.

The six functions and powers of the JAC are to:

  • select suitably qualified persons who merit appointment as judges for the prime minister’s consideration;
  • receive applications from qualified persons for the selection of judges;
  • formulate and implement mechanisms for the selection and appointment of judges;
  • review and recommend programmes to the prime minister to improve the administration of justice; and
  • make other recommendations about the judiciary; and
  • to do such other things as it deems fit to enable it to perform its functions effectively or which are incidental to the performance of its functions under this Act.

The premier is also empowered to “make an order for the purpose of removing any difficulties” that may arise in connection with implementation of the proposed Act.

Other salient points

1. The JAC will be a nine-member commission that includes the chief justice as the chairperson, the Court of Appeal president, the chief judge of Malaya, the chief judge of Sabah and Sarawak, a federal court judge appointed by the prime minister and four eminent persons.

palace of justice 260207 042. The four eminent persons shall not be any member of the executive or other public service. They shall be appointed by the prime minister after consulting the Bar Council, the Sabah Law Association, the Advocates Association of Sarawak, the attorney-general, the attorney-general of a state legal service or any other relevant bodies.

3. JAC members will hold office for a period of two years and are eligible for re-appointment. They however cannot hold office for more than two terms. They will be paid allowances, not specified in the bill, during their tenure.

4. The appointment of any member may at any time be revoked by the prime minister without assigning any reason. The members can also tender their resignation at any time with a written notice to the prime minister.

5. The appointments may also be revoked on various grounds such as the member being convicted of an offence involving fraud, dishonesty, moral turpitude, corruption or any other offence punishable with imprisonment of more than two years.

6. Members are obliged to disclose their relationship with any candidate under consideration in the selection of judges. The bill defines ‘relationships’ as those of a spouse, former spouse, sibling, uncle, aunt, cousin, sibling to spouse or former spouse and their uncle, aunt and cousin.

7. Members are also required to disclose their connection with any candidate, including their nominee, partner, former partner, spouse of a partner or former partner, a person practising in a firm linked to members and a trustee of a trust under which members or their family are a beneficiary.

8. Failure to disclose their interest with the candidate will make the members liable to a fine not exceeding RM100,000 or imprisonment for up to two years, or both.

Annual report to Parliament

On the process of selection of judges, the JAC will meet whenever there is a request.

It is required to select at least three persons for each vacancy in the High Court, and at least two persons for each vacancy in the Court of Appeal and Federal Court.

The commission will have to take into account the candidates’ integrity, competency, experience, objectivity, impartiality, fairness and good moral character, decisiveness, ability to make timely judgments, legal writing skills, industriousness and ability to manage cases well.

They must also be in good physical and mental health.

abdullah ahmad badawi pak lah parliament pc 101208 05Interestingly, the bill also states that any serving judge or judicial commissioner will not be considered for appointment if they have three or more pending judgments or unwritten grounds that are overdue by 60 days or more.

After making the selection, the commission will have to submit a report to the prime minister, stating the names of the candidates and reasons for the selection.

However, should the prime minister be dissatisfied with the candidates, he can ask for two more names to be selected and recommended for his consideration.

He will then required to offer his advice to the Agong on the candidate, as stipulated under Article 122B of the federal constitution.

The commission is also required to submit an annual report to Parliament, outlining its activities.

The introduction of the JAC was announced by Abdullah a month after the ruling coalition Barisan Nasional’s disastrous showing in the general election on March 8.

It was seen as a move to regain the trust of the legal fraternity after persistent complaints about the way judges have been appointed and promoted.

It has been frequently alleged that senior judges seen as critical of the government have been overlooked in these exercises.

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