Challenging the JAC: Fixing What's Not Broken?
- Edward Lee
- Apr 28
- 6 min read
"A lawyer is challenging the constitutionality of the JAC." My first reaction was "What???" But yes, it’s true — senior lawyer Datuk Wira Syed Amir Syakib Arsalan is mounting a direct constitutional attack on the Judicial Appointments Commision Act 2009.
The Judicial Appointments Commission, established by the 2009 Act, was a historical reform to our democracy. It revolutionised the way Judges are appointed to the superior Courts by reducing Executive interference in the appointment process (in other words, the Prime Minister's absolute discretion).
As such, the JAC Act and the JAC are, by and large, viewed as a step in the right direction of strengthening our Judiciary. Other nations have recently and in the past introduced similar reforms as well.
So, what's up with this challenge? Sounds like it's just turning the clock back on hard-fought reforms. Let's see if that's true.
Basis of the Challenge
Based on his press statement, Datuk Wira Syed Amir Syakib Arsalan essentially argues that the JAC Act tears at the fabric of the Federal Constitution. He claims that it creates a parallel and conflicting system of judicial appointment that, he says, violates the Constitution. The problem to him isn't just who appoints judges, but how, and whether the process is in line with the supreme law of the land.
Though little is said about the technicalities, his challenge likely hinges on Article 122B of the Federal Constitution, which only states that Judges are to be appointed by the Yang di-Pertuan Agong acting on the advice of the Prime Minister, after consulting the Conference of Rulers.
The JAC Act, however, inserts an entire procedure into this process, introducing more actors and layers that go beyond the words Article 122B. So where did all these come from and how exactly does the JAC work?
History of the Commission
To understand why the JAC exists, and why it is now under scrutiny, we'll have to follow the trail of two scandals that shook the Malaysian Judiciary to its core.
The 1988 Judicial Crisis
In 1998, the Lord President of the Supreme Court, Tun Salleh Abas, was suspended and ultimately removed from office under controversial circumstances, after a long-running clash with Prime Minister Tun Mahathir (let's say he really didn't like being checked and balanced by a fiercely independent Judiciary).
Along with the Lord President, several senior Judges who stood by His Lordship's side were either suspended or sacked. It was a brutal showdown between the Executive and the Judiciary — and the Executive won. Thereafter, judicial independence was at its all-time low (who would dare go against the Executive now?).
There were talks of reform in the ensuing years, but the tipping point came only two decades later.
The Lingam Tape
In 2007, a grainy video tape leaked to the public. In it, top lawyer VK Lingam was caught allegedly fixing judicial appointments, boasting about installing loyal Judges and having allies whisper in the Prime Minister’s ear (no prizes in guessing which PM he was referring to).
The scandal traced back years to the 1995 Bukit Bintang election case, where one of the "loyal" Judges controversially handed victory to a losing Barisan Nasional candidate. That Judge later rose to Chief Justice, just as promised by VK Lingam.
A Royal Commission confirmed the video’s authenticity. It exposed the deep rot within the Judiciary: cosy holidays with Judges, ghostwritten judgments, and political interference at the highest echelons of the Bench. But no one was charged.
Fed up with the ongoing issues, the Bar Council, led by Dato' Ambiga Sreenevasan, demanded reforms to restore trust in the Judiciary, with the establishment of the JAC at the forefront. Check out the Bar Council's Memorandum on the Setting Up of an Independent Judicial Commission (26th September 2007).
Fortunately, Tun Mahathir was no longer Prime Minister at that time. The late Tun Abdullah Badawi, more open to compromise, worked with the stakeholders and thus the JAC was born. (Rest in peace, Tun. Thank you for your humble service.)
Is the Challenge Needed?
The JAC works like this: instead of the Prime Minister being the sole judge for judicial appointments, the nine-member JAC consisting of the nation's top Judges (five of them) and other eminent persons from the legal fraternity (four of them) will vet, interview, and select qualified candidates for the Prime Minister's consideration.
This shifts the process from an arbitrary political exercise to a more comprehensive process. In simpler terms, Judges will no longer be plucked from the Prime Minister's back pocket.
In my opinion, the JAC Act merely fills in the procedural gaps of Article 122B of the Constitution and does NOT go against it because the Prime Minister still has the final say, here's how.
Two More Names Please?
The Prime Minister can reject the candidates recommended by the JAC by asking for "two more names". And then two more, and two more, and two more, ad infinitum, until he gets someone he likes (hypothetically). See: section 27 of the JAC Act.
You're Fired!
The Prime Minister holds significant sway over the JAC itself. He appoints the majority of its members (one Judge and four eminent persons) and can remove the four eminent persons anytime, without having to give a single reason. See: section 9(1) of the JAC Act.
Interestingly. he can simply delay the appointment or reappointment of the four eminent persons once their terms expire, effectively crippling the JAC by denying it the quorum needed to meet and function. That would give him free rein in appointing Judges. And yes, it just happened in 2024, as we mentioned in our earlier post.
It's Top Secret!
Our earlier post also discusses the elevation of the former Attorney General to the Federal Court, where no one really knows how he was selected — and that’s precisely the problem. The mystery has sparked all kinds of theories. Unlike in the United States, where potential Judges are subject to public hearings, the JAC in Malaysia still operates behind closed doors. The process lacks transparency and public accountability, despite the JAC Act's objective for "public interest to be properly represented." See: section 2(c) of the JAC Act.
So, the challenge (as it stands) is... unnecessary. But that doesn’t mean all challenges should be thrown out.
Fix the Cracks, Don’t Tear Down the House
The above deficiencies are where the challenge to the JAC Act should be directed! If there’s a constitutional concern, it’s not that the entire mechanism is illegitimate — it’s that it's imperfect and there are still loopholes that still allow Executive encroachment.
The Chief Justice spoke up regarding the flaws in our current system as well. She suggests that removing the Prime Minister from the appointment of judges will reinforce impartiality of selection process.
These flaws are real, and reform is overdue. But to throw out the whole system? That’s like demolishing a house because the windows need fixing.
If anything, this moment should spark a conversation about upgrading the JAC, giving it real teeth, making it more transparent, more representative, and yes, enshrining it properly into the Constitution. The solution isn't to rewind the clock, but to push it forward.
Enshrine it, Don't Undermine It
It is high time that an improved version of the JAC be enshrined in the Constitution.
Back in 2007, the Bar Council pushed for constitutional reform, but wisely settled for the JAC Act, understanding that change takes time. More crucially, the mechanism is not perfect yet. It would've been premature to include it in the Constitution.
But now, almost a decade later, we’ve seen judicial independence thrive, trust in the Judiciary soar, and a stronger bond between the Bar and the Bench. The JAC has played a crucial role in this progress!
So, the challenge to take it down? It’s missing the point. Instead of tossing the entire JAC system, let's fix the flaws. The Prime Minister’s influence still looms large over the appointment of both Judges and JAC members, and true transparency in the process remains elusive. The conversation has barely begun.
The solution isn’t to undo progress; it’s to strengthen it. Fix these cracks, make the JAC truly independent, and enshrine it in the Constitution. The JAC has already delivered reform, now it’s time to lock it in for good.
Senior lawyer GK Ganesan has written an insightful and in-depth piece on promoting transparency in selecting Judges. Do check it out here: Is the selection of judges transparent? | Paradox.
The government is reviewing the Act currently, let's hope it delivers the changes people want to see.
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