Is the selection of judges transparent?

Is the current method of selecting judges, transparent? Should it be? What can be done to improve it?

A few days ago, Prime Minister Mahathir suggested that a Parliamentary Select Committee should choose potential judges. He would then recommend them to the King and the Conference of Rulers.

That suggestion was met with a barrage of objections.

His detractors all pointed to one concern: Parliament can not interfere with the Judiciary. That would breach the principle of the ‘Separation of Powers’.

If allowed to do so, Parliament could choose which of its friends should sit in judgement of the laws it passed. [For an explanation on ‘Rule of Law, Separation of Powers, and Fusion of Powers’, click here].

This is a legitimate concern.

How it was done in the old days…

In the old days, the Chief Justice would invite a suitable candidate for tea. He would be offered a judge’s post. If he agreed, his name would be sent to the PM.  The PM would then very humbly ‘advise’ the King to make the appointment [Art. 122B, Constitution].

After the King consulted the Conference of Rulers, the appointment would be made.

But no one knew about the process.  It was all a secret.  It remains so to this day.

It is the PM who has ultimate control

Despite the CJ’s nomination, constitutionally, it is the PM who decides who should be appointed a judge. The PM’s duty is merely to ‘consult’ the CJ: [Art. 122B(2)].

The PM may reject the CJ’s candidate. If the PM approves the candidate, the candidate is ‘security cleared’:  the Secret Service trawls through his life, and reports in.

The PM would then ‘advise’ the King that that he should appoint the candidate. The King will then ‘consult’ the Conference of Rulers [Art 122B(1)].

Now, the PM can advise the King to appoint anyone he likes.

Under the Constitution, the King cannot reject the PM’s ‘advice’:[Art 40(1A)].

So where is this much vaunted ‘Separation of Powers’ argument?

That is a major concern, isn’t it?

Then came the JACA

Then came the Judicial Appointments Commission Act 2009 (‘JACA’).  It was said to ‘follow’ its UK counterpart: it never did!

Under JACA, the PM would appoint 9 Commissioners.

The top 4 Judges in the Judiciary enjoyed an automatic place in the Commission.

The fifth member was a serving Federal Court Judge.

These 5 would be joined by 4 ‘eminent persons’. They are appointed by the PM after consulting the Bar Council Malaysia, Sabah Law Association, the Advocates Association of Sarawak, the Attorney General, the State Legal Adviser of any state, or ‘any other relevant bodies’: [s.5 JACA].

The noble opening words of the JACA – the ‘need for Public Interest to be represented’

The JAC Act starts with a solemn promise.  It declares, in convoluted fashion,  that: –

‘The Prime Minister must uphold the continued independence of the judiciary and must have regard to –

(c)        the need for public interest to be properly represented in regard to matters relating to the judiciary, the administration of justice and related matters’: [s.2]

These words promise ‘the need for Public Interest to be properly represented’.

Currently, does the public have any say in how, and which candidates are appointed as judges?

If the answer is a ‘No’ – then the previous regime’s JACs operated against the spirit of the JAC.

Five Major Problems compared to UK

In the UK, the Constitutional Reform Act 2005 established a body called the ‘Judicial Appointments Committee’.

When the UK JAC’s composition or procedure is  contrasted with the Malaysian JAC, five features in the Malaysian Act deliberately destroy any public participation in judge selection.

Our Act, although professing to ‘copy’ its UK template, deliberately omitted ‘inconvenient’ – but crucial – aspects of the UK model.

First, the UK JAC had 3 duties:-

(1)       to select candidates solely on merit;

(2)       select only people of good character; and

(3)       to encourage diversity in the range of persons available for judicial selection.  

The previous regime, which brought in the JACA, completely removed those three duties from the JAC!  So they chose not to select judges ‘solely on merit’.

If they did not, then on what basis did they make selection? No one knows.

Second, in the UK, the JAC took over the Lord Chancellor’s responsibility in selecting judges.  In Malaysia, the Judiciary has the only say on which candidates’ names reach the PM’s hands.  In the UK, such powers of the Lord Chancellor and some Senior President of Tribunals [known as the ‘Appropriate Authority’] were deliberately limited.

Third, unlike its Malaysian counterpart, the UK JAC Act made express provisions for public participation.  For example, only the public decides how a majority of the UK Commissioners were appointed.  The UK JAC comprises 15 commissioners.  Twelve of the UK Commissioners, including the Chairman, are appointed through open competition. The other three are selected by a Council of judges.

Fourth, the Chairman of the Commission in UK must always be a lay member, unlike Malaysia.

Fifth, the Commission is controlled by non-judges.

Of the 14 other Commissioners, 5 are judges, 2 are practising lawyers; 5 are members of the public; and one must be a tribunal judge [in our local context, a member of the Industrial Court, e.g.]; and one must be a ‘non-legally’ qualified judicial member.

We can see the major role the UK public plays in the UK JAC’s proceedings.

And how the stakeholders are all brought in.

No one is shut out, unlike Malaysia.

So, in Malaysia, there is only lip service to this concept of ‘Public Interest’.

Problem-6: Stakeholders unable to participate

Although the Act says the Bar Council Malaysia, Sabah Law Association, the Advocates Association of Sarawak are to be consulted, this is not done.

Before the current PH government took over on 10 May 2018, the ‘four eminent persons’ were never appointed from the West or East Malaysian Bars.  Their opinions were never sought. They had no voice in the JAC. These Bars had no right to suggest any candidates.

This injustice continues to this day.

If so, how can the JAC protect ‘Public Interest Representation?’

Problem-7: Serving Judges should not be gatekeepers

We saw how – unlike the UK example – our JAC is wholly controlled by the Judiciary’s top judges. Five of the most senior members of the Judiciary are the Judiciary’s gatekeepers.

Under the BN regime, they had to account to no one.

They controlled who got in, and who got promoted.

For example, under the previous regime, Justice Mohd Hishamuddin Yunus was a fierce upholder of the Constitution.  He would not tolerate any abuse of power.  In a series of cases, he struck them down. He was shut out.

Fortunately he has been appointed into the JAC as Commissioner.

The law allows this weakness to continue.  That must be changed.

Problem-8: Absolute Secrecy in JAC proceedings

Strangely, members of the Commission and their helpers are required function under an atmosphere of secrecy: [sec. 32 JACA].  Any breach of that duty attracts imprisonment and a fine.

That is a good way of shutting up everyone.

What is so secret about the process of appointing judges? What is there to hide?

Despite the noble words in the Act, transparency has been thrown out by Parliament.

It is time to remove this secrecy requirement.

Problem-9: PM’s extraordinary powers

Beyond his constitutional right to select judges, the  JAC Act grants the PM extraordinary powers.

He may, ‘without assigning reasons,’ fire the JAC’s Commissioners: [ss.9 (1) and 10(1) (f)].

Once a Commissioner is fired, the PM can substitute him with anyone he likes.

When so much power reposes in the hands of the PM, and where the Commission functions under strict secrecy, is ‘public interest ‘properly’ represented’ ?

Problem-10: Unequal selection, Major reservoirs of talent ignored

A candidate must have 10 years of legal practice to be appointed as a judge: [Art. 123, Constitution].

Right now the judiciary is 90% composed of lawyers selected from the Attorney General’s Chambers.

That results in a stark imbalance of talent.

The total number of lawyers available for consideration as candidates at the AG Chambers cannot, at any time, exceed 100. On the other hand, there are at least 9,800 lawyers in Peninsula Malaysia who have been in practice for over 10 years.  Over 200 practitioners from East Malaysia also qualify. They are ignored too.

There is no reason at all for this one-sided, prejudiced, ‘closed-eye’ that is turned towards the Bar.

So, more than 90% of the talent pool is simply ignored – or not invited.

What a waste!

Problem-11:  Selectors ignore Senior Lawyers for Appellate Posts

The way members of the judiciary are currently chosen is to ignore completely the judicial talent at the Bar.

Public interest is not served when senior lawyers are ignored for appointments to the Court of Appeal or the Federal Court.

Highly qualified members of the Bar – those with a high level of skill and knowledge, a love of the law, immaculate character and an unblemished record – should be invited to join the bench: especially at the level of the Federal Court.

Such candidates would bring to the judiciary a lifetime’s experience of independent thinking, deep knowledge of the law, and fearlessness when confronted by authority – qualities that are sorely lacking.

Yet, such invitations have been few. When granted, it was only to the lowest rung, at the High Court Level. That too to ageing talent.

One judge remarked that the practitioners from the Bar ‘do not know the business of judging,’ and that ‘the lawyers do not have the discipline and training to be appointed to the Federal Court.’

All available evidence points in the opposite direction.

There are many examples in the UK of direct appointments from the Bar to the apex court.  This is an established practice. In 1921 Sir Edward Carson KC was appointed Lord of Appeal; as was James Reid KC in 1948. Lord Reid was one of the greatest judges of his time. In 1949 Cyril Radcliffe KC was made an appellate judge. Six years before Datuk Seri Gopal Sri Ram graced our Court of Appeal, Lord Goff was elevated, directly from the Bar, into the Court of Appeal.  When the Supreme Court replaced the House of Lords in 2011, Jonathan Sumption QC and Sir Nicholas Wilson QC were directly elevated to UK apex Court.

That is also the established practice in India: Justices Sikri (1964), Chandra Roy (1971), Kuldip Singh (1988) and Santosh Hegde (1999) are all examples of judges who were selected – directly from the Bar – to the Supreme Court. That practice started 54 years ago! Recently, senior advocate Indu Malhotra was the second Indian lady lawyer to be directly elevated from the Bar to the Supreme Court. She it was who wrote one of the judgements emancipating the LBGT community in the Navtej Singh Johar case on 06 September, 2018.

Problem-12:  Inequality Gap

First there’s the gender gap. At least 50% of the judiciary must be taken up by ladies.  It is their constitutional right! A Great Being once said men and women were as two wings of a bird.  No bird could attain perfect flight and soar the heavens if one wing was not allowed to develop the same strength as the other. So also the nation, and the judiciary.

Again, there must be a balanced mix of people from different backgrounds within the judiciary.

Why is Malaysian lagging in this respect?

Since its inception, JAC has borne no great fruit

This statutory call for the need for  ‘Public interest to be properly represented in matters relating to judiciary and the administration of justice’  requires the JAC Act to be completely re-amended.

Only then will it comply with its professed aim.

Since its inception in 2009, none of the propositions of the JACA have borne any fruit.

Why is that?

A Great Being said:

‘… A tree that bears no fruit is but fit for fire.’

You get the idea.

Proposal-1:  What can be done to improve the JAC Act?

The first thing the Government and Parliament have to do is resolve the numerous problems listed above – by amending the JAC Act 2009.

Proposal-2: The public do have a right to know

In order for public interest to be protected, the public have the right to know:-

Who are the candidates  for judgeship?

How are they being selected?

On what basis is any candidate rejected?

The Act has to be amended to enable this concern.

Proposal-3: The PM’s powers must be limited

Any discretion of the Prime Minister, in practice, must be narrowed.  Otherwise he’d only appoint people who were malleable to his views.  We saw this in the last regime.

Once a final List is made, neither the Prime Minister nor any political party should have any right to interfere in the selection process of judges.

Possibly, having consulted his Cabinet, the Council of Elders and having read the recommendations of the Committee for Institutional Reform, the PM must have realised that he was perched upon a Constitutional dilemma.

Remembering the 1988 crisis, Mahathir may have attempted to honour the doctrine of the Separation of Powers. Who can fault him?

That may be why the PM suggested the Parliamentary Select Committee select judge-candidates.  That committee, composed of people’s representatives, could take over the duties of finalising a List of Candidates.

Once they gave him the List, the PM would simply submit it to the King, and fold his hands.

Mahathir must have had his eyes on the future.

In 1988 he was rebuked for the Judicial crisis. In 2018 he is trying to improve it, and he is again chastised.

That too by lawyers.

Odd, that!

Proposal-4: The Composition of JAC must be increased, Eminent Persons must be from Public & Professional Bodies

The JAC must have more members, exactly like the UK JAC.  Members of the professional Bars from both West and East Malaysia should sit on it. As should members of public.  And the latter should have a great deal of say on the appointment process.

Proposal-5:  Judge selection must be made public

Why should the selection be made public?  Because there is an even greater concern – Democratic Accountability.

This is easily demonstrated.

Take for instance the question posed by a UK newspaper.

On 05 December 2016, seven years after the establishment of the modern UK Supreme Court, The Daily Mail asked this profound question: –

‘A candidate [for the US Supreme Court], who is already been heavily vetted by … the security services, and interviewed by the President, … is then required to take part in an exhaustive ‘confirmation’ process which spanned several months…

Compare and contrast, if you will, this great exercise in democratic accountability with the secretive and opaque process via which we in Britain selection you members of our Supreme Court. These 11 justices, who earn £212,000 a year, are, like their American counterparts, granted extraordinary powers to shape our everyday lives.’

Judge selection – especially for the Court of Appeal and the Federal Court – must involve members of the public.

That would make the process more transparent.

When the selection process is transparent, the rakyat can see for themselves who they would be judged by.

They can see for themselves what the candidates’ respective merit, reputation, integrity, and knowledge are.

Proposal-6:  Legally, the PM’s proposal is possible

The JAC is already authorised to entitled to set up ‘any committee it deems fit’ to assist in implementing its functions: [s.18 (1)].

Again, the ‘Commission shall determine its own procedure’:[s.6]

So what is to stop the Commission from setting up a nationally-televised  selection process?

It does not have to be at Parliament.  It could be within the Judiciary.

Shortlisted candidates could be invited before a JAC Committee.  The Selection Committee should comprise the rakyat’s representatives, members of the judiciary and professional bodies.

While their personal details must be protected, candidates could be asked questions touching on various aspects of the administration of justice:

(1).      ‘What is your understanding of the Separation of Powers?’

(2).     ‘How would you enhance the Rule of Law?’

(3).      ‘How would you harmonise the conflicting laws dealing with mixed marriages?’

(4).      ‘What do you propose to improve the administration of justice?’

(5).      ‘How would you make the work of the courts more convenient, more just?’

These are the sort of questions Judge Kavanaugh has been answering in the last few weeks.

Wouldn’t these be interesting questions?

Wouldn’t the candidates’ answers show the public whether they are qualified to become judges?  And run our daily lives?

Do you think unqualified candidates would dare appear before such a committee?

That is the real test.

Whether the candidate passes or fails the test is not important.

That the process is transparent—and that the public are allowed to play a role in it, is.

Governance in the dark is not good governance.

Having selectors not answerable to anyone  is not good for the judiciary, to the nation, or its people.

The Selection Process must be public

This brings us to the concern one local commentator expressed over the way Judge Brett Kavanaugh  – the current nominee for the US Supreme Court  –  was assailed by Senate questions at his Confirmation Hearings.

He said this kind of procedure was as ‘unsuited’ to our country. I disagree.  Justice and transparency are necessities for every country.

It is true that candidates must not be discomfited during the selection process.

In reality that concern is more imagined than real.

Lawyers are used to being excoriated by judges.  They know what it is to be raked over a searing bed of coals by their opponents.

Good lawyers will not wilt under the selection process.

Whether they are questioned in a courtroom or by the JAC Selection Committee, brilliant lawyers would welcome it fearlessly.

It is in their nature.

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