The Malaysian Bar congratulates Mohd Hishamudin Md Yunus, Linton Albert, Mah Weng Kwai, and Emeritus Professor Shad Saleem Faruqi on their appointment as members of the Judicial Appointments Commission.
Public confidence in the judiciary has seen a significant erosion over the years, which has been a matter of immense concern to the Malaysian Bar. We welcome the new appointments and look to these appointees to carry out their duties with independence and integrity.
A meticulous, stringent and impartial selection of judicial candidates is crucial to safeguarding the independence of the judiciary, which will in turn restore — and ultimately elevate — much-needed public confidence in the Judiciary.
The Malaysian Bar has long advocated a judicial appointments commission, whose membership is representative of all the stakeholders in the administration of justice. We had voiced our concerns about the Judicial Appointments Commission Bill, which was passed as the Judicial Appointments Commission Act 2009. Some of those reservations remain.
In this respect, we note that the representation on the commission is currently tipped in favour of the judiciary, as prescribed by section 5(1) of the act. That provision permits the composition to be balanced by the appointment of four “eminent persons” who are not members of the executive or other public service.
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The Malaysian Bar is of the view that the four “eminent persons” of the commission ought to be selected from the Attorney General’s Chambers, the Bar Council, the Advocates Association of Sarawak, the Sabah Law Society, academia and civil society and that there should be greater gender and ethnic representation.
Future appointments of Judicial Appointments Commission members should strive for inclusivity and diversity, and move away from being dominated by serving and retired judges, whose views would be adequately represented by the five mandatory members of the judiciary, four of whom are office-bearers of the judiciary.
The raison d’être of the commission is to ensure the separation of powers between the judicial, executive, and legislative branches of government. The dire need for this has been clearly underscored by the lessons gleaned from the past — such as the 1988 judicial crisis, and the events that led to the establishment in 2007 of a royal commission of inquiry on the “video clip recording” — and, more recently, the separate revelations by a Court of Appeal judge and a lawyer regarding alleged judicial interference.
These have taught us that what ails our current system appears to stem from executive interference and a lack of transparency and accountability in the judicial appointments process.
To restore public trust and confidence in the judiciary, there is an urgent need to reform the appointment processes for members of both the Judicial Appointments Commission and the judiciary.
Clearly defined criteria for the selection and promotion of judges, meaningful consultation with all relevant stakeholders, and accountability of those involved in the appointments processes are critical.
The Judicial Appointments Commission must be an institution that is absolutely independent and must stand the test of time no matter which individual helms the top office of the state. An effective and unimpeachable commission of true substance is indispensable to reinstating and upholding the integrity of the Malaysian judiciary.
George Varughese is president of the Malaysian Bar.