Kuala Lumpur: The former attorney-general of Sabah, Datuk Mohamed Bazain Idris, said the JAC Bill should be heralded because it is an attempt to make the appointment of judges more transparent and responsible.
This was because a larger sector of the populace would be given the opportunity to participate in the initial process of selecting a prospective person to that august chair of the judiciary, he said.
Mohamed Bazain, who is now chairman of the Complaints Bureau in the Multimedia Communication and Multimedia Content Forum of Malaysia, said S5(1)(f) of the JAC Bill was unprecedented as no other Act had stated the consultation process with so many bodies such as the Sabah Law Association, the Advocates of Association of Sarawak, and the Attorney-General of each state legal service so explicitly.
The JAC Bill, he said, had adopted the language of the existing articles in the Federal Constitution relating to judicial appointments.
"Every appointment to the High Court, the Court of Appeal and the Federal Court as well as the top four posts are "appointments" made by the Yang Di-Pertuan Agong. And at each stage of these appointments, they have to take a new oath of office.
"In my opinion, the Federal Constitution contains only the essence of a judicial appointment and there should not be any attempt to speculate on the prospects of promotion after the appointment," he said.
Mohamed Bazain said the application of the JAC on the judicial appointments was clear as can be seen in S1(3) of the JAC Bill.
Article S1 (3) states that "This Act applies to appointments of judges of the Federal Court, Court of Appeal and High Court and judicial commissioners and also include the appointment of the Chief Justice of the Federal Court, the President of the Court of Appeal, the Chief Judge of the High Court in Malaya, the Chief Judge of the High Court in Sabah and Sarawak" made on or after the commencement of the JAC.
He said the appointment of judges was governed by the Federal Constitution. For example, Article 122B is for the appointment of judges of the Federal Court, Court of Appeal and the High Courts, and Article 122AB for the appointment of judicial commissioners.
Mohamed Bazain said the Prime Minister, as head of the Executive, had an important role to play in the Federal Constitution because it was the practical link between all the other branches of the Constitution to the Yang di-Pertuan Agong, particularly in this instance.
"Hence, the Prime Minister must tender his advice as to the appointment of judges to the Yang Di-Pertuan Agong, after consulting the Conference of Rulers.
The Conference of Rulers must then play its constitutional role effectively," he said.
Mohamed Bazain added, "It is not within our purview to know whether the Conference of Rulers has rejected any names proposed by the Prime Minister or not but we must give our trust to the Conference of Rulers.
"As can be observed lately, the Rulers have shown great maturity in exercising their constitutional role effectively."
Mohamed Bazain said that any suggestion to reverse the process of appointment of judges as suggested by some observers would compromise the constitutional position of the Yang di-Pertuan Agong in the Federal Constitution.
Under Clause 22(2)(b) of the JAC Bill, the Commission must select not less than two persons for each vacancy where the vacancy is for judges of the superior courts other than the High Court.
The Commission will vet the candidates and make a recommendation to the Prime Minister in the form of a report under S26.
After reviewing the report, the Prime Minister may once request for two more names for his consideration. After that, the Prime Minister must submit the names to the Conference of Rulers for their consideration.
The JAC Bill is implicit in that the names suggested by the Commission to the Prime Minister must be accepted finally for recommendation.
Mohamed Bazain said: "In exercising that constitutional power, there must be mutual respect, otherwise the whole constitutional process will be in jeopardy. In comparison to the existing procedures, the JAC Bill provides for a system of check and balance. We should take comfort in this.
"Again I stress the role of the Conference of Rulers. They have to play their part effectively and we should not underestimate their discretionary power for good reason.
"On a final note, the JAC Bill does not seem to affect the constitutional status of the States of Sabah and Sarawak. The requirements for the Prime Minister to consult with the Chief Judge of the High Court, the Chief Ministers of the States of Sabah and Sarawak, remain intact."
Meanwhile, former Chief Justice Tun Mohamed Dzaiddin Abdullah also hailed the government's move to formulate the JAC Bill as it would complement the existing Federal Constitution and improve the process of appointing judges. He said there was no clear procedure or process on the appointment of judges in the Federal Constitution at present.
"I praise the government for finally introducing this Bill for the establishment of the Commission to recommend to the Prime Minister on the appointments of the superior court judges," Dzaiddin who was a chief justice from Dec 20, 2000, to March 15, 2002.
A former High Court judge, Dato Syed Ahmad Idid, said the most important aspect of the JAC was to choose the right candidates to be judges.
"The selection of judges should be done in a holistic manner where certain important criteria should be taken into consideration," he said, citing those attributes as honesty, fairness, good health, strong achievements, aptitude, knowledge and ability to make decisions.
"They should also have the fear of God in them," Syed Ahmad said, adding that the success or failure of the JAC would depend entirely on the human factor.
"You can have the best of laws but if there are no right people interpreting them, then they would fall flat," Syed Ahmad added. - Bernama
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