It is unfortunate that the Government did not appoint any representative from the Bar Council to the newly constituted Judicial Appointments Commission (JAC). The Bar has a legitimate interest to be involved in the appointment and promotion of judges. It is part of the wider duty of the Bar (a) to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour; and (b) to protect and assist the public in all matters touching ancillary or incidental to the law (s 42(1)(a), (g), Legal Profession Act 1976).
It must be appreciated that the judiciary offers a service to the public. It is a service of dispute resolution. The public is the consumer. The public pays for such service, whether directly through court filing fees or indirectly through taxes. To remain relevant as an attractive avenue for dispute resolution, the judiciary, like all service providers, must be sensitive and attuned to the needs of its consumers. Lawyers are the main users of judicial services. They are the link between the consuming public and the judiciary. This makes them the best persons to articulate the concerns of the public.
Even if the Bar Council is allowed to present its views to the JAC on judicial candidates, that is not enough. Without representation in the JAC and participation in its decision making process, the Bar’s views may have no influence on the JAC’s decisions.
The current make-up of the JAC consists mostly of judges and ex-judges. While they may be well acquainted with the trials and tribulations of being a judge, they may not be conversant with the public and the Bar’s expectation of judges. Even if they do, they may not give enough weightage to such expectation in their decision making.
A former prime minister took the view that it would be a conflict of interest for lawyers to sit on the JAC. Perhaps he had in mind a situation where a vindictive lawyer/JAC member opposes the promotion of a judge merely because he lost a case before that judge. With respect, the view is fallacious. The lawyer in the JAC will be acting in his capacity as a representative of the Bar, and not of his client. The lawyer is therefore under a duty to present the position of the Bar, and not his personal opinion.
The Lingam tape scandal and the Royal Commission’s findings on the same were the impetus that led to the establishment of the JAC. The public was concerned over a lack of transparency and too much discretion in the appointment and promotion of judges. The JAC consists mostly of members who were appointed in the old way. Will they be able to adopt a new approach which addresses those concerns? Will they minimise the area of discretion by drawing up objective criteria to assess judicial candidates? And publicize the same? Will they also set up a procedure for how they will go about their exercise, and disclose it?
The effectiveness of the JAC has already come into question due to the fact that they can only make recommendations to the Prime Minister; the Prime Minister is not under any obligation to follow those recommendations. Now, the exclusion of the Bar from the JAC is yet another blow to judicial reform. Taken together, the foregoing factors give rise to a strong perception that despite the setting up of the JAC, the ultimate aim of the Government is to retain the status quo. If that is indeed the case, the taxpaying public would be bearing the expense of an additional layer of bureaucracy that does not serve any useful purpose.