Judicial Appointments Commission (JAC) Bill sparks debate amongst MPs
Parliament: JAC debate continues unabated
By ZULKIFLI ABD RAHMAN and LOH FOON FONG
By ZULKIFLI ABD RAHMAN and LOH FOON FONG
KUALA LUMPUR: The debate on the Judicial Appointments Commission (JAC) Bill 2008 brought forth opposite viewpoints from Barisan Nasional and Pakatan Rakyat MPs.
The Barisan side supported the Government’s move to improve the judiciary’s independence and integrity, but Pakatan MPs wanted the Bill revoked, saying that the Prime Minister wielded too much power in the appointments of judges.
“The formation of the JAC is the right move to bring confidence into the independence of Malaysia’s judiciary, in line with international standards of judicial systems,” Khairy Jamaluddin (BN-Rembau) said.
In urging the House to approve the JAC Bill, Khairy said the process of selection and elevation of judges would be transparent to all. “The bill should be supported because the Commission is a reflection of the country’s respect of democratic society. “It also ties the Prime Minister to a duty to ensure that continuous freedom of the judiciary is maintained and defended,” he said in debating the Bill. Khairy suggested that former distinguished lawyers and legal stakeholders be appointed to the Commission as its members. “The members should also be free of pressure from lobbyists or corporate influence,” he added.
Add a clause
Datuk Wilfred Bumburing (BN-Tuaran) said the country’s courts would be able to carry out their responsibilities freely and not be hindered by “unnecessary outside interference.”
He suggested that a clause be added to the Bill to include an advisory that the Prime Minister would confer with the state governments of Sabah and Sarawak in the appointments of judges.
“This is to ensure that capable judges from the two states have equal opportunity to be elevated to higher posts,” he added.
Lim Kit Siang (DAP-Ipoh Timur) feared that the JAC would be become a toothless tiger when it comes into force next year.
“The existence of the JAC itself does not adhere to the requirements of the Constitution, which means that at any time in the future, its decisions can be challenged in court,” he said.
Constitution amendments
Lim said the Government should look into the bigger picture of finding out the root causes of failure in the judiciary’s integrity and independence. “There is also no attempt to return Article 121(1)(a) of the Constitution to its original form in the Bill to ensure there’s separation of powers between the executive and the judiciary. “We shouldn’t forget the judicial crisis of 1988, which brought scandal to Malaysia’s image,” he added. He called for the Bill to be referred to a parliamentary select committee first to allow Parliament to investigate the causes of the loss of confidence in the judiciary.
Khalid Abd Samad (PAS-Shah Alam) said the Bill would not settle the problem of executive interference in the judiciary. He cited the fact that the Prime Minister is featured prominently in the Bill, which showed his pivotal role in the judiciary’s make-up. The Prime Minister must support the freedom of the judiciary otherwise the Bill’s purpose would fail, he added.
“If the present or future Prime Minister is tainted by scandal, that will affect his capability to ensure the judiciary’s independence is maintained. “The Bill states that it’s a pivotal requirement that the Prime Minister must defend the independence of the judiciary. “I hope (if something like the) the 1988 judicial crisis recurs, Barisan MPs will join us in moving a motion of no-confidence against the Prime Minister because he had failed to protect the judiciary’s independence,” Khalid added.
Government’s responsibility
The appointment of judges is the Government’s job and is not tantamount to interference, Dr Mohd Puad Zarkashi (BN-Batu Pahat) said. It is considered interference only when there are orders to overturn a judge’s decision and cause it to be partial to certain parties, he said.
“The question is whether there is a monitoring system to ensure that judges make impartial judgements,” he said, adding that interference could come from the Government, corporations, relatives or individuals. The judges themselves must be competent, he said during the JAC Bill debate after the second reading.
PM’s powers
Puad quipped that lawyers would be the first to enter Hell because they “defended the wrong as right.”
Opposition leader Datuk Seri Anwar Ibrahim interjected and said that it was judges and not lawyers, which caused some to snigger.
Puad said that further clarification needed to be made on the issue raised by Anwar on the fact that the Prime Minister can revoke the appoinment of “eminent persons” to the Commission without needing to give any reason, as stated in Section 9 (2). He said that this power to revoke would not help in the cause of improving public perception of the transparency of the judiciary.
“This is dangerous. The public needs to be told why they are dropped; this would boost confidence in the Bill,” he said. Puad said that he agreed with Wee Choo Keong (PKR-Wangsa Maju) who said on Tuesday that there should be a clearer definition of “eminent persons” as stated in Clause 51 (F), to ensure that the right candidate was appointed. He also said that the Government should also look into the conflict that was created between the Bill and the appointment of the Borneo Chief Justice because the Chief Ministers in Sabah and Sarawak have the right to appoint or sack their own judiciary heads.
In this case, the proposed new provision that gives the Prime Minister the power to decide, with the recommendations of the JAC, runs contrary to the provision in Article 161E (b) of the Federal Constitution.
Karpal Singh (DAP-Bukit Gelugor) pointed out that there was no guidelines in the JAC Bill on who could be appointed and who should be promoted. He also asked if there were guidelines on actions that could be taken against judges who committed offences outside of the Bill.
“Are there actions possible against a judge, for instance, who makes sexist remarks against women lawyers?” he said. Karpal said that since the Bill was in conflict with Article 122B of the Constitution, the DAP will not support it. “In principle, we accept that what is in the Bill is good, but whether it can be accepted is a separate matter,” he said.
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