MORE lawyers have thrown their support behind former Malaysian Bar president Ambiga Sreenevasan’s call for a major overhaul of the Judicial Appointments Commission (JAC) to ensure that the process of electing top judges is free from political interference.

Ambiga had called for an independent JAC to be formed as a constitutional body to oversee the appointment and promotion of senior judges.

She said parliamentary involvement in the process was a form of interference that violates the doctrine of separation of powers between the three branches of government – executive, legislature and judiciary.

Her comments follow Prime Minister Dr Mahathir Mohamad’s statement on Wednesday saying that a parliamentary select committee would determine whether proposed judiciary candidates were right for the job.

Malaysian Bar member and civil rights lawyer Andrew Khoo said he “most definitely” supported the call for the constitution to be amended for the JAC to be made a constitutional body.

“Yes, most definitely. However the nature and composition of the JAC needs to be overhauled as well,” he said.  

“It needs to be larger, wider and more inclusive in terms of representation. It should not have existing judges as members, there should be a majority of lay persons, and proceedings should be transparent,” he said, citing equivalents of the JAC in the UK and South Africa as potential models to look at.

The JAC was established in 2009 to select judicial candidates for the consideration of the prime minister, who has the final say regarding the appointment of judges to the superior courts.

The commission now includes the chief justice, who is the chairman; Court of Appeal president; chief judge of Malaya; chief judge of Sabah and Sarawak and a Federal Court judge appointed by the prime minister.

On September 18, the JAC named four new members, including three former judges. The new appointees are former judges of the Court of Appeal – Mohd Hishamudin Md Yunus, Linton Albert and Mah Weng Kwai – and Universiti Malaya legal and constitutional expert Emeritus Professor Shad Saleem Faruqi.

They will serve for two years until September 3, 2020.

Dr Mahathir had agreed to their appointments, which were made under item 5(1)(f) of the JAC Act 2009.

Former Universiti Malaya law professor Gurdial Singh Nijar said while he supported Dr Mahathir’s move to ensure that top judges are not appointed by the prime minister, “we cannot support that Parliament is allowed to do so”.

“Parliamentary vetting will breach the separation of powers as legislature and judiciary are separate and independent institutions under our Federal Constitution.

“So the government should set up an independent JAC whose members will be appointed according to procedures laid out in a JAC Act,” he told The Malaysian Insight.

Gurdial, who is president of the National Human Rights Society (Hakam), said the separation of powers doctrine is a basic structure of the constitution and a fundamental component of the style of law, confirmed by the Federal Court in two recent court decisions – Semenyih Jaya and Indira Gandhi.

Last year, the Federal Court delivered a landmark judgment in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat, a decision which former federal court judge Gopal Sri Ram said had restored the concepts of judicial power, doctrine of separation of powers and judicial independence.

The crux of the case was whether Parliament may limit or oust the jurisdiction of the courts through federal legislation. The Federal Court had to consider issues concerning the constitutionality of certain provisions in the Land Acquisition Act 1960, the law that governs compulsory acquisition of land.

The Federal Court later held that the judicial power of the federation is still vested in the judiciary, despite the amendment to Article 121(1) of the Federal Constitution in 1988.

The Indira Gandhi decision earlier this year also affirmed the position that civil courts have exclusive and inherent jurisdiction to review the actions of a public authority, such as the Registrar of Muallafs. The decision also affirmed the principle of separation of powers and the rule of law, whereby Parliament cannot remove such features by amending the Constitution. – October 12, 2018.