*** This posting is my personal opinion on the whole situations on JAC. Reader discretion is advised.
The formation of JAC by our honourable PM. Though it is for a noble cause from certain people’s view, personally, I would think it is not carefully thought of based on the following grounds (beginning to sound like a lawyer)…
1. The tabling for the JAC Act is done at the parliament. It is a call to enact a new Act, not an amendment of the constitution. The reason why it was not a call for a an amendment of the constitution (what I have learned from an officer of the law) is because the constitution can only be amended when there are 2/3 quorum consensus.
2. Even if the Law is passed, the law cannot be enacted or enforced due to the fact that there is still the constitution which states that the appointment of judges must be done based on the constitution and jurisdiction of the high court of Borneo (for Sabah and Sarawak) and any amendment or enactment of Laws to the constitutions which involved the part of Sabah or Sarawak must also require the approval of the head of state – TYT. I don’t know how long it will take.
3. The constitution clearly states that the construct of the country is consist of the three branches of Government. Namely, The Legislation, The Executive and the Judiciary. At the moment, without the Act to-be, the Executive and legislation has no control over the judiciary overall.
4. What it seems now is that Pak Lah, our right honourable PM is trying to put one whole branch of the government under another branch… In biology, we are able to do so with the technique of prune and graft. I would doubt that it has any stand unless the legislation wish to let go their foundation under the constitution by not obeying them in achieving having the ultimate control power of all branches of Government. I would call that power crazy. This is what my friend, an officer of the law thinks. I would questioned him but I dare not to, fear in contempt.
5. I am not an expert of Law. However, based on my understanding of the construct of law, the weight of the law is more on the constitution as it is what other laws in the country is based on. If a legislation law states something that is against the constitutional law, the constitutional law will prevail. The weight of the Law in Malaysia is as follows: The Constitutional Law (a. k. a. The Governed Law), The Statutes Law (a. k. a. Legislation Law), and The Act Law (The Executed Law).
6. What has happened now is that the law maker in the legislative is trying to put up an Act, (not a statute law and not a constitutional law change) which may be of non-compliance to the constitutions of the country. Why would I say that? Let me explain it the way I see it. Be as it may, the constitution states that the appointment of judges and the power to do so is vested in the hands of the chief judges in Malaysia, namely the Chief Judge of Malaya and the Chief Judge of Sabah and Sarawak (Formerly known as Chief Judge of Borneo), The Chief Justice himself and the President of the Court of Appeal. The new act states that the commission which consist of the two chiefs from east and west and two other chiefs in the judiciary are judicially right under the constitution to appoint new judges, must now get in an additional five other people of choice of the Prime Minister of the country, to make an appointment. What will happen after the choice is made? The number of additional people is more than the chiefs in the judiciary. They can appoint anyone of their choice even if the one opposing the choice has the constitutional right to reject the appointment of such. Does that means that the judiciary has no more power and the politician is now judging who is right and who is wrong? Won’t that defeats the purpose of having the bill so that the judiciary can be more transparent?
7. Though I am not expert in law, which I have to clarify clearly here, that my understanding in the situation is as if the JAC, being partly consist of people who might not have a say in appointment of judges is now given a say at such decision. Wouldn’t this be like legalising what VK Lingam is doing at the appointment of judges on the all-famous VK Lingam Tape? I sure hoped it is not.
8. Again I have to stress that I am not an expert in Law. The Act also mentioned that the appointment of the right on board is only valid for a period of 2 years and thereafter allows to be extended by another 2 years, which thereafter, anyone sitting on the board must relinguished their post. What will happen to the four chiefs? Do they have to relinguish their post as well? As far as I know, it is very hard to find people with good qualifications to be the chiefs.
9. I am not sure what’s in the mind of our Right Honourable Prime Minister but I would think there could only be two possibilities, that is
I. Either someone is power crazy, which I think not. I do hoped that it is not. It will be unthinkable, as my friend, a officer of the law has hinted earlier.
II. Changes has yet to be thought of carefully. Which I think so, as I am not a law expert, and yet I could sense some of the possible problems it might brings.
10. This is how I see it from a lay-man perspective. At present, when you need to appoint a judge, all it takes is to do step 1, 2 and 3. Come the JAC Act, the step will be changed to A, 1, 2 and 3. The problem now is that under the constitution, neither the legislative nor the executive has the right to control the judiciary or the other way around. The legislative, executive and the judiciary should be a branch of its own and should not make claims of power over the other. I believed it was on this ground that the royal commission in the VK Lingam tape wrote their grounds on.
11. I know that politicians like control. That could be why there is such post such as defacto Law Minister been made just so that the executive can exercise the control over the judiciary (At least, that’s how I see it now, but, hey, I am not an expert in Law.)
12. In other country, the legislators, the executors and the jurors are usually consist of different group of people. In Malaysia, the executors are politicians, the legislators are also politicians. How that the politician also wanted to be in (or to) control the last remaining branch of the Government. It is kind of like the story of “One man country” one can be the prime minister in the “one man country” and he is also the driver,the army, the gardener, the toilet cleaner (Toilet cleaniness is very important), the judge, the prisoner, the doctors, the plantiff, the defendant, the vet, the nurse, the electrician, the plumber, the scientist,…………etc. Would that be the case, where is the transparency? One cannot be the accuser, the judge and the executor. It will be a lost of justice.
13. I for one agreed with the Former CJ that the will be problem if this bill is tabled and approved as-is. It will give the politician too much power that justice will be lost from the country. I do agreed with PM that there should be transparency in carrying justice. But I would strongly disagreed that the power of making judges to be put in the hands of the politician. It should be in the hands of people with no political connection in the legislation and executives. Only that way we can assured that transparency is maintained. I would agreed if the terms in the bills would differs … but I would not agree if the terms is as such now that justice will be lost in the hands of the politicians. I would disagreed with enacting the Act if it is unconstitutional and I think the right honourable PM would also agreed with me on this.
Disclaimer: This posting is my personal though on the matter. Reader discretion is advised.