Kuala Lumpur: The High Court has agreed to hear an application by the Malaysian Bar seeking the disclosure of the minutes of every meeting held by the Judicial Appointments Commission (JAC) since January 2023.
The application is tied to an ongoing suit brought by lawyer Syed Amir Syakib Arsalan Syed Ibrahim in which the Bar appears as an intervener. In his suit, Syed Amir is challenging the constitutionality of the JAC Act 2009.
At case management today, Justice Amarjeet Singh gave Syed Amir and the defendants – the government and the JAC – until July 30 to file their affidavits in reply.
The judge also set Aug 30 as the deadline for all parties to tender their written submissions.
The Bar’s application, filed last week, contends that the JAC minutes must be sighted to resolve factual disputes raised in Syed Amir’s amended originating summons.
In an affidavit filed in support of the Bar’s application, its secretary, Murshidah Mustafa, said the documents would assist the court in determining whether the case warrants referral to the Federal Court.
Earlier, Syed Amir’s counsel, Simrenjit Singh, urged Amarjeet to hear his client’s reference application to the Federal Court first.
“The JAC members have an overreaching influence on the executive, which is not envisaged by the Federal Constitution,” said Simrenjit, who was assisted by Daniel Annamalai.
That position was supported by senior federal counsel Ahmad Hanir Hambaly, appearing for the defendants.
Counsel Christopher Leong, appearing for the Bar, however, called for the court to dispose of the discovery application first, pointing out that Syed Amir had in his affidavit alleged executive interference in the exercise by the JAC of its functions.
“Our application will become academic should the court allow the plaintiff’s reference application,” said Leong, who appeared with B Anand Raj and Abdul Rashid Ismail.
Lawyer Ramkarpal Singh, acting for Bersih – granted amicus curiae status in the proceedings – said the Bar’s application should take precedence.
“The JAC Act is not unconstitutional and the plaintiff’s 16 legal questions for reference are too general,” the MP and former deputy law minister said.
Syed Amir filed his reference application on June 25.
He is seeking a ruling as to whether the JAC Act 2009 contravenes the constitution, and whether judicial appointments made under the Act are rendered void as a result.
His originating summons, filed in April, challenges the constitutionality of the JAC Act 2009, its alignment with the Federal Constitution, and the legitimacy of all judicial appointments made under its purview.
He argues that the Act impinges on the supremacy of the constitution, as provided by Article 4, and that it is invalid as it violates Article 38(4), having been passed without the consent of the Conference of Rulers.
Syed Amir further claims that the commission’s powers breach the doctrine of separation of powers and the constitution’s basic structure.
He is seeking a mandamus order to compel strict adherence to Article 122B of the constitution, arguing that the prime minister has absolute discretion in advising the Yang di-Pertuan Agong on judicial appointments.
The JAC is responsible for nominating judges to the superior courts and recommending candidates for top judicial roles, including chief justice and chief judges for Malaya and Sabah & Sarawak.
Syed Amir contends that his legal questions are neither academic nor hypothetical, and that the outcome of the suit may affect all judicial appointments made since 2009.
