In our country, it is the Judicial Appointments Commission (JAC) that selects our judges.
While technically, the appointments of judges are still the prerogative of the prime minister and the rulers, while the role of JAC is but to identify and assess candidates to ensure that only the most qualified are selected for judicial office, in effect, I will go on a limb and say that it is JAC that elects our judges, because after JAC recommends a name to the prime minister or the rulers, I doubt that the prime minister and rulers are going to say no to their recommendation, even if they have the powers to say no to the recommendation. How else are they going to select a judge?
Recently, the appointment of judges by JAC has come under criticism.
What is the problem with JAC appointing judges, you might ask? Someone needs to elect judges after all, so why not JAC?
Well, the answer is that it is because 5 of the 9 members of JAC are appointed by the prime minister.
Now, think about that.
If 5 out 9 members of JAC are appointed by the prime minister, and JAC is the body that in effect, selects our judges, wouldn’t this be equivalent to the Prime Minister himself selecting the judges?
If you were a prime minister, wouldn’t you be tempted to put 5 people who will do your bidding and select the sort of judge that you would want to sit on JAC?
If I was the prime minister, I doubt I can resist the urge to hire judges who thinks like me, or worse, is indebted to me, so that I can do things as I wish, while being fully confident that even if what I did is contested in court, the verdict is going to be in my favour.
If you were a judge, and you knew that whether you will be appointed to higher positions will depend on the recommendation of JAC, and you knew that JAC has 5 of the prime minister’s people sitting on it, and a case comes before you where you know that Prime Minister would like it to go one way, wouldn’t you be tempted to tilt your verdict in the direction that the Prime Minister wants it to go, so that when you are up for promotion, your name will be favoured by his people who are sitting in JAC?
Our judges are not gods after all. Only a god can be happy and content being themselves. The rest of us mere mortals need things like promotions and success to feel that our life has worth and meaning. As eminent as our judges are, I am sure they are still just mortals, who desire such things as status, position and prestige in their career, to make them feel that their life did not go to waste.
Regardless of how eminent or honourable that a judge is, how much can you expect them to be impartial and independent, when things like their status, position, prestige and even remuneration, is at stake?
Now the next question you might ask is why does the Prime Minister even need to be involved in the selection of judges? Isn’t he already busy being the Prime Minister and the finance minister? Isn’t he also busy running around the globe trying to get investors to come to our country too and getting involved in international affairs?
Considering how busy he is, must he also be involved in selecting 5 out 9 people to sit on JAC ?
Does our 77-year-old Prime Minister have 48 hours a day and 14 days a week? Why trouble himself with so much work at this age, and that too at a job that he probably has zero competence in. After all, what value can our prime minister possibly add in the task of selecting the people who have a responsibility of selecting a competent judge, when he is just a career politician.
Let us also not forget that there are actually far easier and more transparent ways to elect members of the JAC. You could for example, just use a lottery system, and randomly select someone who used to be in a senior position in the civil service, or a public university, or the military, or the police, or whatever else job that would make one an eminent person, to be the person who sits on JAC, whenever JAC needs to elect a new member. There is no reason to believe why such a random lottery system will produce a less stellar JAC committee as compared to a JAC committee that was selected using the discretion of a prime minister.
Last but not least, isn’t having the Prime Minister select 5 out of the 9 members in a commission that likely has the most important say in the selection of judges, a blatant infringement of the concept of separation of power.
At its very basic, the concept of separation of power states that the legislative, executive, and judicial branch of the government must be separated, to ensure that no single branch becomes too powerful, and so that checks and balances can be applied amongst them, to prevent any abuse of power.
Without the principle of separation of power being in practice, we will simply cease to be a nation “of the people, by the people and for the people, ” that elects its own rulers and comes out with its own laws to rule themselves.
Instead, we will just be a dictatorship, where one person or a few person, will be able to determine the shape and course of the nation with or without the consent of the people, simply because there will be nothing in the country that will be able to keep their powers in check.
To have the concept of separation of power in practice, at its most fundamental level, the different branches of the government must run independently of each other.
It is for this reason that the Judges in the country do not get to determine who is elected to the parliament, the members of the parliament do not have a say in who gets into the civil service and the prime minister is not supposed to determine who becomes a judge.
I, by the way, am not the only one that thinks that having 5 out of 9 people in JAC infringes on doctrine of the separation of power.
A lawyer, Datuk Syed Amir Syakib Arsalan Syed Ibrahim, has also made the news recently for challenging the constitutionality of the Judicial Appointments Commission (JAC) and its power to appoint judges, arguing that the Judicial Appointments Commission Act 2009 is unconstitutional.
He believes that the Act violates the doctrine of separation of powers, and the basic structure doctrine of the Constitution.
Last week, Chief Justice Tun Tengku Maimun Tuan Mat also said during a speech that proposals to amend the Judicial Appointments Commission (JAC) so as to remove the role of the prime minister in the appointment of judges would reinforce the impartiality of the selection process.
I don’t think that you even have to be a lawyer or a judge to see that the role of the prime minister in the appointment of judges will not only raise the question of the impartiality of judges, it will also call to question as to whether ours is really a nation “of the people, by the people and for the people”, or if we are actually just a country where the PM is another name for a dictator, who gets to do things like choose the judges that he pleases and have opposition MP’s give him their personal allegiance, and control all arms of the government from behind the scene.
Personally, I am not even against dictatorships.
I actually believe that dictatorships, or what is euphemistically called an “authoritarian government”, is the most suitable form of government to run a southeast Asian nation like ours, provided that the dictator is an “enlightened despot” like Lee Kuan Yew, rather than a megalomaniac like Pol Pot.
I actually am looking forward to somebody, even Anwar, taking “authoritarian” power in the country, to resolve the issue of corruption, racial and religious tension as well as regional separatist ambitions that plague the federation.
However, I also believe that one of the key signs that the dictator we have is an enlightened despot, and not a closeted megalomaniac, lies in their capacity to be honest and straightforward in their actions and expressions.
If Anwar wants to be an authoritarian leader, and signals clearly that he wishes to usurp the powers of the parliament and the courts in order to do so, I hope that at some point that he will just say it in a honest and straightforward fashion, in the manner that Lee Kuan Yew would have done it.
That one day after Tengku Maimun gave her speech, Prime Minister Datuk Seri Anwar Ibrahim issued a statement to say that the government was committed to undertaking a comprehensive review of the JAC amid a legal challenge on the law, and make it sound as if he is completely unaware of how his role in JAC is undermining the impartiality of the judiciary and the doctrine of the separation of power, is what makes me doubt as to whether Anwar will be the authoritarian leader we need in this difficult time we are in, due to domestic and international turbulences, or is he just going to be another crazed third-world megalomaniac, that will sink the nation just so he can remain in power.
Power corrupts everybody, but more so a leader that is not protected by the truth.
The longer the people keep an untruthful leader in power, the greater the risk that the nation is going to be devoured by the dark side, that will most certainly possess a leader that is not protected by truthfulness and honesty.
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