THE government must reform the judge-appointment process before selecting the replacements for Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin, said lawyers.

Raus and Zulkefli will vacate their posts on July 31.

An Office of the Chief Registrar of the Federal Court statement today said the two men have tendered their resignations in a letter to the Yang di-Pertuan Agong dated June 7.

The Judicial Appointments Commission (JAC) plays a role in appointing judges for the high court to the Federal Court, and also in appointments to the top four offices – chief justice, Court of Appeal president, chief justice of Malaya, and chief justice of Sabah and Sarawak.

JAC comprises the top four office-bearers, a Federal Court judge and four other eminent persons appointed by the prime minister.

However, lawyers said, in its current form, JAC lacks a balanced representation from the legal fraternity, and gives the prime minister, who is not bound by its recommendations, too much sway in naming judges.

“As it stands, JAC does not include representatives from the Bar Council, Attorney-General’s Chambers, Advocates’ Association of Sarawak, and Sabah Law Society,” constitutional lawyer Syahredzan Johan told The Malaysian Insight.

“As such, the PM should consider revamping the composition of JAC to include these representatives.

“In any event, the PM should seek feedback from these bodies before advising the Yang di-Pertuan Agong on the appointment of the new chief justice and Court of Appeal president.”

Constitutional lawyer Surendra Ananth said there are two “problems” with the current system.

“There are too many judges in JAC. The UK’s JAC model is a good one to follow. It has a good mix of lawyers, judges, academicians and members of civil society.

“Also, the prime minister should not be involved in appointing JAC members. This defeats the purpose of upholding the independence of the judiciary.”

Secondly, JAC’s recommendations are not binding, with the prime minister able to submit other names to the Agong for judicial appointments.

Surendra said there are two ways to overcome these problems, one of which is to amend the constitution to state that the prime minister’s advice to the Agong on the appointment of judges must be made in accordance with the recommendations of JAC.

The second option, which does not need a constitutional amendment, is to require the prime minister, by law, to provide reasons whenever he rejects JAC’s recommendations, and to make them public.

Institutional Reforms Committee (IRC) member K.C. Vohrah, a retired Court of Appeal judge, has called JAC “very top heavy”, and agreed that it should emulate the UK judicial system, where the commission is led by a non-lawyer and comprises mostly “lay people”.

“To select judges, you have a top-heavy group of people making decisions. (Four) judges sitting on the commission, and you have five others who are mostly retired judges,” he told reporters last month.

“Would you think they won’t pay deference to the chief (justice), who would say ‘I want this, I want that’? Something has to be done. I think that (the UK system) is what we should be moving towards.”

IRC, set up by the Pakatan Harapan government, has said a reform of the judiciary will likely begin with the appointment process.

Retired Court of Appeal judge Mah Weng Kwai, who is a member of IRC, has said it is “important” for lawyers to be represented in JAC, recommending that the Malaysian Bar president be part of it.

“Because lawyers, they are the consumers of the court system. They go to court every day. They know who are the good judges and who are the not-so-good judges.” – June 13, 2018.