Comparative Judicial Selection: Malaysia vs. UK, Australia, Singapore, and India

India Reverts to Collegium System for Judicial Appointments After striking Down NJAC

New Delhi – India has returned to its long-standing “collegium” system for appointing judges after its attempt to introduce a new National Judicial Appointments commission (NJAC) was struck down by the Supreme Court. The NJAC, designed to reform the appointment process, was deemed unconstitutional by the apex court in October 2015, just months after its implementation.

The NJAC was envisioned as a six-member body chaired by the Chief Justice of India, comprising two senior Supreme Court judges, the Minister of Law and Justice, and two eminent persons. The eminent persons were to be nominated by a three-member committee consisting of the Chief Justice, the Prime Minister, and the leader of the Opposition, with at least one being a woman or from a minority or marginalized group.

However,the Supreme Court’s decision in October 2015 meant the constitutional amendment and the NJAC Act were invalidated,leading India back to the collegium system.Under this existing framework, a panel of senior judges is responsible for selecting and recommending candidates for judicial appointments.

For the Supreme Court, the collegium typically consists of the Chief Justice and the four most senior judges. Their recommendations are then forwarded through the Chief Justice to the government. The Law Minister then presents these recommendations to the Prime Minister, who advises the President on the appointment of new judges.

this shift in India’s judicial appointment process comes as a global trend, highlighted by a 2015 report from the Bingham Center for the Rule of Law.The report indicated that a majority of Commonwealth jurisdictions (81.3% at the time) had established some form of Judicial Appointments Commission (JAC), with only a minority (18.7%) leaving sole obligation to the executive branch. While India’s experience saw the scrapping of its NJAC,the report noted a “clear trend” favoring JACs following their establishment in several countries after 2003.

How does the level of executive involvement in judicial appointments differ between Malaysia and the UK, and what concerns does this raise regarding judicial independence?

Malaysia: A Hybrid System Under Scrutiny

Malaysia’s judicial selection process is often described as a hybrid,blending elements of executive influence with judicial recommendations. The process primarily revolves around the Judicial Appointments Commission (JAC).

JAC Role: The JAC, established in 2009, recommends candidates for appointment too the superior courts – the Federal Court, Court of Appeal, and High Courts.

Selection Criteria: Candidates are evaluated based on qualifications,experience,integrity,and suitability. A key aspect is the consideration of judicial performance and feedback.

Executive Involvement: While the JAC makes recommendations, the final appointment rests with the Yang di-Pertuan Agong (King) acting on the advice of the Prime Minister. this element of executive discretion has been a consistent point of contention, raising concerns about potential political interference in judicial independence.

Recent Developments: Amendments to the Federal Constitution in 2023 aimed to strengthen the JAC’s role and enhance clarity,but the extent of their impact remains to be seen. The debate surrounding judicial appointments in Malaysia continues, focusing on achieving a truly self-reliant and merit-based system. Judicial appointments Malaysia, JAC Malaysia, judicial independence Malaysia are key search terms.

United Kingdom: A Commission-Based Approach

The UK employs a largely independent commission-based system for selecting judges. The Judicial Appointments Commission (JAC) is central to this process.

JAC Independence: The UK JAC is notably independent, free from direct government influence. Its members comprise legal professionals and lay representatives.

Merit-Based Selection: All appointments are based solely on merit, assessed through rigorous submission processes, including sifting, interviews, and assessments of legal skills and judicial qualities.

Transparency: The JAC publishes detailed facts about its selection processes and decisions, promoting transparency and accountability.

Levels of Courts: The process differs slightly depending on the court level, but the core principles of merit and independence remain consistent. Judicial Appointments Commission UK, UK judge selection, judicial independence UK are important keywords.

Australia: Balancing Tradition and Modernity

Australia’s judicial selection process varies across states and territories, but a common thread is a blend of traditional practices and modern merit-based assessments.

State-Level variations: Each state and territory has its own judicial commission or similar body responsible for recommending candidates.

Judicial council Involvement: The Council of Australian Governments (COAG) has worked to establish national consistency in judicial appointments.

Merit and Experience: Emphasis is placed on legal expertise, judicial temperament, and experience.

Executive Role: While recommendations are typically followed, the executive branch retains the formal power of appointment. Australian judicial system, judicial appointments Australia, state judicial commissions Australia are relevant search terms.

Singapore: A System Prioritizing Experience and Expertise

Singapore’s judicial selection process is characterized by a strong emphasis on experience and expertise, with a significant role played by the Legal Service Commission.

Legal Service Commission: This commission is responsible for appointing judges to the Supreme Court and State Courts.

Career Judiciary: Singapore largely operates on a career judiciary model, with many judges being promoted from within the ranks of the Legal Service.

Emphasis on Experience: Candidates typically possess extensive experience as legal practitioners or within the public service.

Limited public Scrutiny: The selection process is relatively opaque, with limited public scrutiny compared to systems in the UK or Australia.Singapore judiciary, Legal Service Commission Singapore, judicial selection Singapore are key phrases.

India: The collegium System and Ongoing Debate

India’s judicial selection process has been a subject of intense debate, revolving around the “Collegium” system.

The Collegium: This is a body of the five senior-most judges of the Supreme court that recommends appointments and transfers of judges.

Executive Role (Limited): While the executive branch (President) formally makes the appointments, it is generally bound by the Collegium’s recommendations.

Criticisms of Opacity: The Collegium system has faced criticism for its lack of transparency and potential for nepotism.

National Judicial Appointments Commission (NJAC): Attempts were made to replace the Collegium with a National Judicial appointments Commission (NJAC) in 2014, but the NJAC was struck down by the Supreme Court as unconstitutional. Indian judiciary, Collegium system India, NJAC India, judicial appointments India are critically important keywords.

Comparative analysis: Key Differences & Trends

| Feature | Malaysia | UK | Australia | Singapore | India |

|—|—|—|—|—|—|

| Key Body | Judicial Appointments Commission (JAC) | Judicial Appointments Commission (JAC) | State/Territory Commissions | Legal Service Commission | Collegium |

| Executive Influence | Significant | Minimal | Moderate | Moderate | Limited (bound by collegium) |

| Transparency | Moderate | High | Moderate | Low | Low |

| Merit-Based | Yes, but concerns about political influence | Highly | Yes | Yes | Yes, but concerns about opacity |

| Career Judiciary | Developing | Limited | Limited | Strong | moderate |

Benefits of Different Approaches

* Independent Commissions (UK):