Simplified: How judges are selected in Malaysia vs UK, Australia, Singapore, India
Here's a simplified comparison of how judges are selected and appointed in these five Commonwealth countries, some of which have an independent body called a Judicial Appointments Commission (JAC).
Malaysia (Has JAC)
Malaysia has a nine-member JAC chaired by the Chief Justice, with the other members being the other top three judges, and five members appointed by the prime minister (a Federal Court judge and four eminent persons). There is a two-step process now, namely selection and then appointment:
Step 1: The Judicial Appointments Commission (JAC) filters and selects candidates based on merit, then recommends names to the prime minister. (Judicial Appointments Commission Act 2009).
Note: Under the JAC Act, the PM can ask the JAC for two alternative names (for vacancies for the top four judges, Federal Court and Court of Appeal).
Under the same law, the PM does not need to give any reason for rejecting the names, and there is no limit on how many times the PM can ask for other names.
Step 2: After accepting JAC's recommendations, the prime minister submits the names to the Yang di-Pertuan Agong.
The Agong then appoints judges based on the prime minister's advice and after consulting the Conference of Rulers (Federal Constitution's Article 122B).
The JAC, introduced in 2009, is a step forward for Malaysia as there are now written criteria and written procedures for a person to be selected as judge.
The JAC also sends candidates' names for background checks by five agencies: the police, the anti-corruption body, the companies commission, the insolvency department, and the tax authority.
The JAC, introduced in 2009, is a step forward for Malaysia as there are now written criteria and written procedures for a person to be selected as judge. — Picture by Raymond Manuel
UK (Has JACs)
After the UK's constitutional reforms in 2005, there are now three bodies involved in selecting and recommending potential judges (the JAC for England and Wales; Northern Ireland's JAC and the Judicial Appointments Board for Scotland).
Looking specifically at England and Wales, the 15-member JAC is chaired by a layperson, with six judicial members, two professional members, five laypersons, and one non-legally qualified judicial member.
The JAC's role is to select candidates on merit, having good character, and to encourage diversity in the range of available candidates.
The JAC has a detailed list of items that a candidate has to declare when applying to be a judge (such as criminal convictions, traffic offences, being bankrupt, tax issues) to assess if they are of 'good character', and will also carry out character checks with professional regulatory bodies and the authorities such as for insolvency and tax.
The JAC selects judges up to the High Court level, while the JAC would also be part of independent selection panels to select higher-ranking judges or judges at the higher courts.
Generally, the Lord Chancellor (who is a Cabinet minister) may accept the JAC's recommendations, and has limited powers to reject or ask for reconsideration of recommended candidates.
Generally, the King will appoint judges on the recommendation of the Lord Chancellor, based on the recommendation by the JAC or an independent selection panel.
For certain positions such as Supreme Court judges, the Lord Chancellor's recommendation — based on the panel's recommendation — would go to the prime minister, and the prime minister would advise the King on the appointment.
Australia (No JAC)
Under Australia's Constitution, the Governor-General 'in Council' appoints judges. (The Governor-General is the head of state, a role that is played by the Agong in Malaysia and the King in the UK.)
This means that the Governor-General appoints judges on the advice of the prime minister and Cabinet.
The Attorney-General (who is part of Cabinet) makes recommendations to the Australian government on who should be appointed as judges.
For the appointment of High Court judges, the federal Attorney-General is required by law to consult with the attorney-general of the states in Australia.
The Attorney-General's website states that the Australian government's process for appointing judges 'may include' advertising, consulting with the legal professional community to request nominations, and getting advisory panels to assess candidates and give recommendations to the Attorney-General.
The website also lists the personal and professional qualities that a judge should have, including outstanding legal expertise; excellent written communication skills; temperament, integrity, impartiality, tact and courtesy.
Singapore (No JAC)
Under Singapore's constitution, the President appoints judges on the prime minister's advice, if he agrees with the prime minister's advice.
Before giving his advice to the President, Singapore's prime minister 'must consult' the Chief Justice on appointments of judges (except for the appointment of the Chief Justice).
India (Had JAC for a few months)
After amending its Constitution and creating a new law in 2014, India introduced the National Judicial Appointments Commission (NJAC) — which had the duty of recommending individuals 'of ability and integrity' for the President to appoint as judges.
The NJAC was meant to be a six-member panel, chaired by the Chief Justice of India, two senior Supreme Court judges, the minister in charge of law and justice, two eminent persons.
(A three-member committee comprising the CJ, the prime minister, the Opposition Leader would nominate the NJAC's two eminent persons, with one of the eminent persons required to be a woman or from a minority or marginalised group.)
But just months after the constitutional amendment and the NJAC Act came into effect in April 2015, India's highest court, the Supreme Court, in October 2015 struck down both laws as unconstitutional.
India then returned to using its existing 'collegium' system, which is where a group of senior judges select and recommend candidates for the President to appoint.
For example, to appoint new Supreme Court judges, there would be a collegium of five judges (the Chief Justice and the four most senior Supreme Court judges), who would give their recommended names via the Chief Justice to India's government.
The Chief Justice would give the recommendation to the law minister, who would then forward the recommendation to the prime minister to advise the President on the appointment of the new judges.
To JAC or not?
Like Malaysia, the four other countries we are looking at are members of the 56-member Commonwealth.
In the UK-based Bingham Centre for the Rule of Law's 2015 report on the best practices for appointing judges in the Commonwealth, it was found that it is now 'uncommon' for only the executive branch of government to be responsible for appointing judges.
At that time, the report found that 18.7 per cent (nine out of 48 independent Commonwealth jurisdictions such as Australia and Singapore) was where the executive was solely responsible for judicial appointments, while 81.3 per cent (39 out of 48 such as India, Malaysia, UK) had a JAC.
This figure will now be 38 out of 48 as India has scrapped its JAC, but the 2015 report had noted that a number of countries, which established JACs in relatively quick succession (including the UK, the Maldives, Pakistan and Malaysia) after 2003 showed a 'clear trend' favouring JACs.
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