The report, titled “Safeguarding Judicial Independence: Appointment, Promotion and Removal of Judges in Malaysia” has suggested that, while the appointment process of judges has improved with the setting up of the commission in 2009, the judicial appointments may still be influenced by the executive as the prime minister retains the sole discretion to appoint five of the nine JAC members.
The prime minister is also empowered to reject names of judges put forth by the JAC. He may also ask for further recommendations without citing reasons and put forward names not originally recommended by the commission.
Aside from that, there is also a concern that the prime pinister, either alone, or with the chief justice, has the constitutional power to initiate removal proceedings of JAC members by petitioning to the Yang di-Pertuan Agong to appoint an ad-hoc tribunal.
“There is a lack of transparency in the appointments of the members to the ad-hoc tribunal and the entire inquiry process,” the report added.
Following that, Bersih 2.0 called for the government to reform the appointment process of judges by amending the federal constitution to allow the JAC constitutional status.
They said the composition of the nine-member commission should also be restructured.
Aside from the four ex-officio members from the judiciary comprising Chief Justice of the Federal Court, President of the Court of Appeal, Chief Judge of the High Court in Malaya and the Chief Judge in Sabah and Sarawak, three members should be selected by the Bar Council, Sabah Law Society and the Advocates Associate of Sarawak representing the three legal practitioner bodies.
“Two lay members from civil society or academia should also be selected by the seven other members in the JAC representing the perspective of public and civil society through open application and a clearly defined selection process.”
Bersih also recommended that the Judicial Appointments Commission Act 2009 be amended to limit the prime minister’s discretion to reject nominations by the JAC to only one time for each vacancy on the commission.
“The prime minister must also provide his reasons for doing so,” Bersih 2.0 said, adding that another change should be that the tenure of JAC members be limited to a maximum of four years.
Universiti Malaya law professor Shad Saleem Faruqi agreed that the JAC was an imperfect institution, but was necessary and important nonetheless.
During a panel discussion after the presentation of the report, he said that since JAC’s inception, there has been greater diversity of judges being appointed to the bench.
“In my two years on the JAC, under former Chief Justice Richard Malanjum and Chief Justice Tengku Maimun, there was a clear reduction in ethnic and gender imbalances.”
“All in all, I think the JAC, despite its flaws, promoted much more openness, transparency and discussion before any decision is made. I think that is a hallmark of democracy and good governance,” said Shad Saleem, who is also a constitutional law expert.