BERSIH 2.0 and the Bar Council organized a webinar on the independence of the judiciary last Monday. A concise and well-researched report was presented and discussed by the panelists.
One of the subtopics on which there was lively discussion was the legal establishment of the Judicial Appointments Commission (JAC) in 2009 to recommend candidates to the Prime Minister.
It was correctly noted that, despite the many improvements introduced by the JAC Act, the Prime Minister retains absolute authority to select the names to be sent to Yang di-Pertuan Agong and the Conference of Rulers.
Although the Prime Minister is required to conduct a multi-stage consultation process with top judges and to take note of the JAC’s recommendations, he is not bound by advice.
Ultimately, the process of appointing higher-level judges is PM-centered. This is not in line with the trend towards an independent appointment process in many democracies.
While agreeing to this statement, I made a number of observations in my capacity as a member of the panel. In my view, the “independence of the judiciary” goes well beyond satisfactory procedures for appointment and promotion. There are many other dimensions.
First, traditional constitutional theory on the independence of the judiciary emphasizes independence from the executive branch. It is indeed important. However, the threat to the independence of the judiciary comes from both private centers of power and the executive body of the state.
Religious groups demonstrating outside the courts and exerting pressure on the government, powerful business houses and other interest groups can force or induce judges to decide in part. Lawyers can offer incentives. Pressure from high-ranking colleagues (as pointed out by Judge Datuk Dr Hamid Sultan Abu Backer) can force a judge to change his judgment.
Our concept of judicial independence must take into account all threats to judicial independence, regardless of their origin.
Second, the security of tenure, much more than an adequate appointment system, is important in maintaining the independence of the judiciary. Many judges have close ties with the executive branch prior to their appointment to the bank, but successfully break those ties when they are elevated.
Third, when it comes to independence, two separate questions have to be distinguished: independence from whom and independence from what?
All people are encapsulated to varying degrees – by time, territory, race, religion, gender, culture, social experience, education, and economic status. Their perception of what is just or unjust, reasonable or unreasonable, true or false is unconsciously shaped by their “social image”.
Any study of the independence of the judiciary should address the inevitable elitist nature of the judiciary and the possible inability of some incumbents to identify with the problems of minorities, the poor, the marginalized, and those suffering from structural and systemic injustices.
All over the world the record of justice in this area is flawed. Granted, in some cases formal law stands in the way of justice. In other cases, however, the law is capable of many glorious interpretations, some of which might add moral tones to the legal canvas.
However, many judges on the bench choose an interpretation that destroys the lives of those knocking on the doors of justice. This was the unfortunate experience of some Orang Asli, some Sabah and Sarawak natives, victims of prison violence, and some mothers longing to hug their toddler who was cruelly torn away from them by their spouse.
Of course there are exceptions. The 2018 federal court decision of Indira Gandhi, written by Tan Sri Zainun Ali FCJ, was one of them.
The Indian judiciary provides vivid examples of a social conscience and perspective. In Olga Tellis v. Bombay (1986), sidewalk dwellers who did manual labor in the city center and slept on the sidewalk at night were evicted by the community to the outskirts of the city, where there were no visible livelihoods. The court ruled that deprivation of livelihood was unconstitutional deprivation of life, as life included livelihood. However, the same Indian judges have poor records on community affairs.
In the United States, more subtle and not so subtle racism is evident in court. Randall Kennedy’s Race, Crime and the Law (1997) provides useful illustrations from the years of American apartheid. In the past, some American courts showed utter disdain for the poor.
In the City of New York v. Miln (1837) case, the court described those affected as “moral plagues” and “infectious articles”. It wasn’t until the 1940s that this infamous case was overridden.
Then how can we ensure that judges push their personal boundaries when interpreting the live dramas that play out before them in court?
Is it possible to appoint bodies that question a candidate’s “social image”? Is it desirable to measure “merit” not only by qualifications and experience, but also by activities that reflect a social conscience and perspective?
Ensuring diversity at the bank in terms of race, religion, region, gender, and social background will help. In addition to the legal guarantees of the independence of the judiciary, ongoing legal training is required to sensitize judges to the emerging demands and expectations of society and the new tides on our shores.
Another administrative reform could be for our High Court to always act as a tripartite so that the curtailment and thrust of the debate and shared or dissenting views in the conference room can result in an objective and impartial judgment.
I agree that the JAC is an imperfect institution. It only recommends and does not appoint judges. Despite its shortcomings, its great advantage is that it facilitates consultation between the five judges of the JAC and the four major members on the suitability of candidates for judicial office. The usefulness of the JAC deserves recognition, much as Parliament’s legislative committees examine draft laws and advise parliament on the content of the laws.
When data is collected, it can be determined that ethnic, gender and regional diversity at the bank has been positively impacted since the inception of the JAC, particularly since 2018.
Candidates can apply and intensive interviews will be conducted with a group of five JAC members. The Bar Council is consulted on the suitability of candidates from the Bar Association. When a judicial commissioner requests confirmation, his judgments are read. Data is collected on how many decisions the judge made. and how many decisions were reported.
Overall, the JAC encouraged more openness, transparency and discussion prior to the decision. This is the hallmark of democracy and good governance.
However, this is not intended to deny the need for further changes.
Prof. Shad Faruqi holds the Tunku Abdul Rahman Chair at UM and the Tun Hussein Onn Chair at ISIS Malaysia. The views expressed here are those of the author.