MAY 26 — I refer to the article in The Malay Mail Online on 22 May 2014 with the headline “Bar Council chairman: Malaysia’s founding fathers never envisioned hudud”, where I was reported to have said:

… Leong also questioned the political independence of the Judicial Appointments Commission, saying the selection of judges was supposed to be made not just by a committee comprising of judges and former judges, but also academics and qualified civil servants.

Leong said if the composition of the commission was more complete, they would be able to select judges who are more capable of delivering good judgement.

“If only existing judges make up the commission, they might be afraid to make crucial decisions that would affect their position. As such, we hope the commission will take note of this matter and initiate reforms,” he said.

I wish to inform you that the report is inaccurate, as:

(a)  I did not “[question] the political independence of the Judicial Appointments Commission” (“JAC”);

(b)  I did not say that members of the JAC should also comprise “qualified civil servants”;

(c)  I did not say that “if the commission was more complete, they would be able to select judges who are more capable of delivering good judgement”; and

(d)  I did not say that “if only existing judges make up the commission, they might be afraid to make crucial decisions that would affect their position”.           

Instead, I had said that the Bar Council’s position is that the JAC Act 2009 falls short of what is required, for the following two reasons:

Firstly, I had said that there is still political influence in the ultimate appointment of judges, as the Prime Minister currently has the final say in the appointment, which therefore makes the appointment of judges a political appointment, in essence. I did not question or say anything about the political independence of the JAC itself, or its members. I had explained that presently the JAC is the body that vets applications, interviews the applicants, decides on an applicant’s suitability and submits its recommendations to the Prime Minister. The Prime Minister may reject the JAC’s recommendation at will, and in doing so the Prime Minister may request for names of other candidates.  There is therefore too much political say in the appointment of judges.

I elaborated that the process should ideally be that the Prime Minister would have one opportunity to request that the recommendation be reconsidered or to reject the recommendation made by the JAC. In doing so, the Prime Minister should state his reason(s) in writing to the JAC. These reasons can be confidential to the JAC but nonetheless, reasons must be provided. Thereafter, the JAC should consider the Prime Minister’s views and reassess its recommendations after considering the reason(s) for the request for reconsideration or rejection. The JAC may put forward another name, or the same name as it deems that the candidate is indeed the best candidate, to the Prime Minister.  The Prime Minister would at this point be obliged to accept the recommendation of the JAC, bearing in mind that the JAC was best placed to ascertain and know who would be most suitable for the position.

Secondly, I had said that the composition of the members of the JAC should be more diverse.  At present, the JAC is substantially comprised of serving judges and former judges. The Bar Council’s position is that in addition to the four Office Bearers of the judiciary, there should be another five members who come from varied backgrounds, ie academics, professionals, and civil society representatives. I did not say that the selection of judges was supposed to be made by a committee comprising of “qualified civil servants”.

I explained that if the composition of the JAC were more diverse, then the decisions that they make in terms of the candidates would be reflective of that diversity. I did not say that if the commission were more complete, they would be able to select judges who are more capable of delivering good judgments. I did not say that if only existing judges make up the commission, they might be afraid to make crucial decisions that would affect their position.

In view of the above, I would be obliged if The Malay Mail Online would publish a correction to the online article concerned as soon as possible, and also make the necessary correction to the article in its print edition, if any.

* Christopher Leong is the President of the Malaysian Bar. 

** This is the personal opinion of the writer or organisation and does not necessarily represent the views of The Malay Mail Online.