Updated 10:58PM, 17 Dec 2008
KUALA LUMPUR, 17 Dec 2008: The Dewan Rakyat today passed the bill seeking to establish the Judicial Appointments Commission which will appoint judges of the superior courts as a measure to uphold the continued independence of the judiciary.
Twenty-four MPs spoke during the debate on the bill, which was passed by a voice vote. The bill was tabled for first reading by Prime Minister Datuk Seri Abdullah Ahmad Badawi on 10 Dec.
An issue which was debated at length touched on the validity of the bill which was said to be contradictory to certain provisions of the Federal Constitution.
However, when winding up the debate, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said the bill was not contradictory to articles 122B and 161E of the Federal Constitution.
“The process provided for in the bill is that which precedes the process of appointment (of the judges) under Article 122B of the Federal Constitution by the Yang di-Pertuan Agong on the advice of the prime minister after consultations as required under Article 122B,” he said.
According to Article 122B (1), all judges are appointed by the Yang di-Pertuan Agong on the advice of the prime minister after consulting the Conference of Rulers.
According to Article 122B (2), before tendering his advice as to the appointment of a judge other than the Chief Justice of the Federal Court, the prime minister shall consult the Chief Justice.
According to Article 122B (3), the prime minister has to consult the Chief Judge of Malaya and the Chief Judge of Sabah and Sarawak on the appointment of the chief judge of Malaya and chief judge of Sabah and Sarawak, respectively.
According to Article 122B (4), the prime minister has to consult the President of the Court of Appeal on the appointment of judges of the Court of Appeal.
On the appointment of judges of the High Court, the prime minister has to consult the Chief Judge of Malaya or the Chief Judge of Sabah and Sarawak, respectively, on the matter.
“At this stage, honourable MPs can gauge that there is nothing in the provisions of the bill which touches directly or indirectly on the process of appointments I spoke at length a while ago.
“This bill has been so formulated that it does not at all touch on the process of appointment and prerogative powers provided for under Article 122B of the Federal Constitution,” he said.
As such, Mohamed Nazri said, the bill can stand on its own without the need for an amendment to the Federal Constitution. Therefore, there was no necessity to amend the constitution.
On the same principle, Mohamed Nazri said, the bill did not also contradict provisions in Article 161E of the Federal Constitution because Article 161E (2) (b) touched on the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court.
As such, he said, the consultative powers pertaining to the appointment of judges vested in the chief ministers of Sabah and Sarawak under Article 161E (2) (b) of the Federal Constitution were unaffected as there was no amendment to the constitution.
Dismissing claims that the bill did not propose any change to the process of appointment of judges of the superior courts, Mohamed Nazri said there was a difference because now nine individuals would be responsible for the selection of the judges.
“How can there be no difference? Previously, the candidate was decided by the prime minister on the advice of one person (the chief justice). Now, nine people will advice the prime minister. Is this not better than before? So, concur,” he said. — Bernama
