Judicial Appointments Commission (JAC) Bill clears Dewan Rakyat
JAC cruises through Dewan Rakyat
by Sharon Tan & Chan Kok Leong ( The Edge )
KUALA LUMPUR: The prime minister’s reform agenda has now passed the halfway mark after his second bill, on Judicial Appointments Commission (JAC), cleared Dewan Rakyat yesterday.
But unlike the earlier Malaysian Anti-Corruption Commission (MACC) Bill, JAC got through despite protests from opposition parliamentarians.
For what was initially thought of as an effort to liberalise or subject the appointment of judges to a separate commission, JAC is no more than an act of making the process more transparent.
Also absent was a widely expected block voting, as Barisan Nasional MPs outnumbered the Pakatan Rakyat representatives.
During the second reading, Deputy Speaker Datuk Dr Wan Junaidi Tuanku Jaafar had accepted the louder voice of BN representatives, although Wee Choo Keong (Wangsa Maju-PKR) asked for block voting.
Wan Junaidi brushed him aside, pointing out that Opposition Leader Datuk Seri Anwar Ibrahim had said it was not necessary. The third reading was passed 20 minutes later under Speaker Tan Sri Pandikar Amin’s watch. Datuk Seri Abdullah Ahmad Badawi was present throughout the winding-up session and watched as the bill was passed.
During the winding-up debate, Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz dismissed claims of too much power being placed under the prime minister by repeatedly saying that it was never the intention of JAC to curtail his prerogative.
“This law is meant to make the process of appointing judges more transparent,” Nazri said. “It has never been the intention of this act to take away the prerogative of the prime minister to appoint judges, given to him under the Federal Constitution.”
He also assured Parliament that the prime minister would not abuse his discretion and ignore all the suggestions forwarded to him.
“If he (the prime minister) does that, he will look very bad in the eyes of the public.”
He was replying to questions from Mahfuz Omar (Pokok Sena-PAS) and Yusmadi Yusoff (Balik Pulau-PKR) on the absolute power given to him under Clause 37 of the JAC which empowers the PM to make orders for purposes of removing any difficulties.
The government, said Nazri, also disagreed with assertions by Karpal Singh (Bukit Gelugor-DAP) and Lim Kit Siang (Ipoh Timur-DAP) that JAC contradicts Articles 122(B) and 161 (E) of the Federal Constitution.
According to Karpal, JAC contradicts Article 122 (B) of the Federal Constitution and questioned if the King would still be consulted in the process of appointing judges.
Wee also raised the issue of JAC being against Article 161 (E) which states that the chief ministers of Sabah and Sarawak have to be consulted before the chief justice of Sabah and Sarawak is picked.
But Nazri explained that the process of consultation with the King and the chief ministers was already being practised since 1963 via written correspondence.
“JAC merely spells out the selection and vetting process of judges. This does not mean that we will ignore their voices and they will still be consulted before any appointment is done,” said Nazri.
Nazri rejected Anwar’s suggestion that the Federal Constitution be amended to address these issues. Despite the Permatang Pauh MP giving his assurance that Pakatan Rakyat MPs would support constitution amendments to put JAC in line with it, the minister said the government could not trust the opposition.
“Since election, the opposition has being trying to lure our MPs and take over the government. How can we trust you?” he added. Anwar and the opposition bench had stood up to assure Abdullah that he would have their support if he amends the Federal Constitution to vest constitutional powers with JAC.
During the debate on JAC earlier in the day, Anwar had also raised the issue of the appointment commission being given the status under the Federal constitution like the Election Committee.
“We worry because the power is in the PM. Hence the law cannot be held by the discretion of one person but must be anchored in law,” he said, suggesting that there should be instead a tenure for the commission so that they could work without intimidation from the executive.
Meanwhile, Dr Mohd Puad Zarkashi (Batu Pahat-BN) warned the government to be careful in the appointment of the eminent persons.
“The Prime Minister has the power to remove them without reasons and that must be explained. Will the removal without having to give reasons give rise to speculations that there is no transparency?
“When they are removed, it must be explained to the people,” he said, adding that the meaning of eminent persons should be defined.
On the same subject, Khairy Jamaluddin (Rembau-BN) asked how the government would guarantee that the four eminent persons appointed to the Commission would be truly independent and have no ties to the judiciary and corporate world.
He also questioned the consultation with Bar Council in the appointment of the eminent persons.
“Will the Bar Council be asked to discuss?” asked Khairy, who also wanted to know whether the Commission would tender a superficial or in-depth report on its recommendations.
Khairy also injected fresh air into the debate when he asked the government to restore the powers of the judges by amending Article 121 of the Federal Constitution to its pre-1988 status.
Prior to the amendment in 1988, Article 121(1) vested the “judicial power” of the federation in the courts. This was understood to mean that the superior courts had an “inherent power” to be the final arbiter on questions of law, to enforce rights and duties and to stand between the citizen and the state.
However, the law now says that the High Courts “shall have such jurisdiction and powers as may be conferred by or under federal law”.
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