What flaws exist in the current Judicial Appointments Commission Act?

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Flaws in the Judicial Appointments Commission Act 2009 Undermine Judicial Independence

The current Judicial Appointments Commission Act 2009 (Act 695) contains significant flaws that undermine the independence and impartiality of the judiciary. The Act vests absolute powers in the Prime Minister for the appointment and removal of commission members, while also lacking effective checks and balances for its members. This concentration of power, particularly in the final approval of judicial appointments, raises concerns about potential political influence.
Prime Minister's Absolute Power in Commission Membership

The Act is structured in a manner that grants the Prime Minister considerable control over the Judicial Appointments Commission (JAC). Specifically, Section 5(1) of the JAC Act is identified as problematic because it stipulates that only four members are included by default, while the Prime Minister directly appoints five members. This means that a majority of the nine-member committee can be hand-picked by the Prime Minister, making it exceedingly difficult for the judiciary to remain impartial and free from partisan political inclinations.
Absence of Effective Checks and Balances

While the primary intention of the JAC Act is to uphold judicial independence, the governing legislation itself fails to empower its members with an effective mechanism for checks and balances. This absence of robust oversight means that the commission's decisions, particularly regarding the appointment of judges to superior courts, are not subject to adequate scrutiny, potentially leading to a system where impartiality is compromised.
Diminished Role of the Chief Justice and the Agong

The JAC Act 2009 has also been criticised for diminishing the traditional roles of key figures in the judicial appointment process. The Act removed the powers of the Chief Justice to propose appointments and promotions of judges. Furthermore, it has reduced the Agong's (King's) role to that of a mere rubber stamp, as the ultimate authority for these decisions rests solely with the Prime Minister, rather than a more consultative or independent process.
"Feudalistic" System of Appointments

The current system for judicial appointments is described as "feudalistic," characterised by appointments made through invitations and secret deals rather than a transparent and merit-based process. This approach fosters an environment where judges may feel compelled to align with political masters to secure advancements and promotions, thereby compromising the integrity and public confidence in the judiciary.

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What flaws exist in the current Judicial Appointments Commission Act?

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