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The long awaited legislation for a Judicial Appointments Commission is a disappointment.
While it provides for a mechanism for selection and recommendation for appointments to the superior judiciary namely, the High Court, Court of Appeal and the Federal Court including their respective heads and provides for criteria for such appointments all of which may appear giving a semblance of transparency yet it could lead to executive interference into the independence of the judiciary. Provisions for the Prime Minister of the day to defend the independence of the judiciary and power conferred on him to appoint and remove any or all the non-judicial members (eminent persons) of the Commission at any time without giving any reasons in essence means that the independence of the judiciary would be dependent on the personality of the Prime Minister in power, in effect the executive arm of the government. Without amending article 121 of the Constitution to restore the doctrine of separation of powers and conferring the judicial power on the courts judicial independence cannot be secured by merely conferring on the chief executive of the government to uphold judicial independence. This provision in clause 2 of the Bill read together with the power of the Prime Minister to remove the eminent persons in the Commission at any time without giving reasons pursuant to clause 9(1) virtually gives legal legitimacy for executive dominance over the judicial arm of the government. There are other flaws in this Bill which are most worrying: 1) While clause 11 sets out at length for avoidance of conflict of interest situations for members of the Commission yet clause 15 dilutes its effectiveness in that contravention of clause 11 does not invalidate “any act done or proceeding taken” pursuant to the same contravention . Hence a judicial appointment made in contravention of clause 11 will in any event be valid. What then is the purpose of the strictures over conflict of interest in clause 11? 2) Clause 5 (1)(f) provides for the Prime Minister to appoint four eminent members to the Commission after ‘consulting ‘ the Bar associations in West and East Malaysia. The word ‘consultation” is not defined in the Bill. Experience has shown in the past how the process of consultation between the Prime Minister and the Conference of Rulers over judicial appointments was abused by one Prime Minister. The process of consultation should not be seen as a sham. 3) While the Bill provides for the Prime Minister to accept persons recommended by the Commission yet it does not expressly provide what happens if he does not accept the recommendations. This omission read together with the power of the Prime Minister to amend the legislation within two years “whenever it appears to him necessary or expedient to do so …………………..” leaves much to be desired. It provides unfettered power to the Prime Minister to amend the legislation under the pretext to “removing difficulties or preventing anomalies”. It will be open to abuse. 4) Further, clause 28 provides for the Prime Minister to tender his advice under article 122B of the Federal Constitution. Under article 122B the advice tendered to the King is after certain processes under the same article including the consultation with the Conference of Rulers. What happens if the Rulers have a differing view from that of the Prime Minister over any recommendation particularly in the light of the choices made by the Prime Minister from those recommended by the Commission? Hence without amending the Constitution to entrench the Commission and harmonize article 122B with its functions conflicts between the Constitution and the legislation could arise. Finally, it must be stressed that the present Prime Minister may be well meaning and may not abuse his powers. The same cannot be said about future Prime Ministers. We must learn from experiences of the past. What is needed is a legislation which will insulate the judiciary as an institution and individual judges to secure their independence. The Dewan Rakyat as a constituent part of the legislature must be mindful of these concerns and provide for such insulation. The proposed Bill is far from providing such insulation. The Constitution must be amended to entrench the independence of the judiciary.
Dato’ Param Cumaraswamy Former UN Special Rapporteur on the Independence of Judges and Lawyers
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