Speaking after chairing the 260th meeting of the Conference of Rulers at Istana Negara on 30 Nov 2022, the Yang di-Pertuan Besar of Negeri Sembilan, Tuanku Muhriz Tuanku Munawir said to ensure the JAC’s independence in carrying out its duties, the Prime Minister should not be allowed to appoint JAC members.
PM10 can take the cue from what the Yang di Pertuan Besar said when recently he said he will defend the independence of the judiciary.
Walk the talk by removing the great influence of the executive over the judiciary by,
- Amending Section 5 of the Judicial Appointments Commission (JAC) Act 2009 and remove the clause which gave power to the Prime Minister to appoint 4 eminent persons to the Judicial Appointment Commission (JAC),
- Remove Article 122B of the Federal Constitution wherein the Prime Minister retains the ultimate power to advise the King on who to appoint to the Federal Court, the Court of Appeal and the High Courts. In short, he or she need not accept the recommendations of the JAC.
The main function of the commission is to select suitably qualified persons who merit appointment as judges.
Presently, the Act said the commission will submit a recommendation report as to who has been selected to be recommended for the appointment to the Prime Minister.
After receiving the report, the Prime Minister may disagree with the report and request 2 more names to be submitted.
Put it simply, the recommendations from the JAC is non-binding on the Prime Minister.
If the appointments of the non ex–officio members (eminent persons) are in the hands of the Prime Minister, the purpose of making the judicial process independent is defeated.
The rule of law is arguably the most basic requirement of any civilized society, and an independent judiciary, to which access is available to all the ordinary rakyat, is an essential ingredient of the rule of law.
Freedom of expression is also fundamental in which the courts and the media complement each other. This does not appear to exist presently as your administration have been accusing journalists and media outlets of spreading "fake news" or other spurious offences.
The judiciary should be a bulwark against efforts to undermine free media.
Defending media freedom can require the judiciary to strike down the rules and actions of the Government which do not properly respect the right to receive and impart information and opinions, and other fundamental rights.
Together, they hold power to account, enforce the rights of individuals and shed light on matters of public interest and they also monitor each other.
When a judicial system is correctly calibrated, the law is applied by judges fearlessly, without favour and with respect.
The Judges are the Guardians of the Constitution.
There is no ideal model of implementing judicial independence in the sense that one-size-fits-all.
Judicial independence is the result of a combination of different conditions, measures, checks and balances.
The adoption of constitutional proclamations of judicial independence does not automatically create or maintain an independent judiciary.
The protection of judicial independence is usually considered as including various aspects that operate on different levels.
1stly, external and internal independence.
External independence refers to the independence of the judiciary from the Executive and the Legislative branches.
Internal independence focuses on guarantees aimed at protecting individual judges from undue pressure from within the judiciary, from other judges and, above all, from high-ranking judges.
High-ranking judges may, for example, exert supervising power over courts' administration but they must not in any way influence the substance of judges' decision-making.
The matter raised by a former Court of Appeal judge in his affidavit that senior judges had intervened in the decisions of numerous appeals including the late Karpal Singh’s sedition case is one clear example.
2ndly, institutional and individual independence.
Institutional independence pertains to the institutional and legal arrangements designed to shield judges from undue pressure and influence.
It is, however, a matter of fact that institutional independence can work in different ways, according to the context within which it operates, and does not guarantee per se that judges do actually behave in an independent manner.
It is necessary, therefore, to consider the concrete behaviours of judges.
Although institutional independence is a necessary condition of individual independence, the two are distinct.
Both required the individual judge and the court to be independent and be seen to be independent.
To have judges who do what the executive tells them, who are corrupt or whose orders are ignored, is almost worse than having no judges at all.
Judicial independence ensures, in particular, that judges are free to conclude and prevent the powerful and rich from subverting the rule of law.
And the courts are the only avenue through which this can be achieved, in the light of their unique powers and their institutional separation from the legislature and the executive.
Thus, it is imperative that PM10 who has repeatedly says he is resolute in good governance, continues the way forward by having the political will to make the amendments to the JAC Act and Article 122B of the Federal Constitution, to establish an independent judiciary for the sake of a proper democratic system within our country.
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