Journey towards a new judicial era

  • Reflecting On The Law
  • Thursday, 14 Feb 2019

IN a rule-of-law society, the judiciary is the cornerstone of the constitutional arch. Its independence, integrity and ability are indispensable to the proper functioning of a legal system.

Lack of an independent and competent adjudicatory institution can also affect investor confidence.

The questionable dismissal of Lord President Tun Salleh Abas in 1988 and the scandalous conduct of some senior judges in the ensuing era dealt a blow to public confidence in the judiciary.

Since the early 1990s, many top judges subordinated the Constitution to the passions and prejudices of public opinion.

We need to usher in a new judicial era. The scenario since GE14 is encouraging.

Many good appointments have been made and some remarkable internal reforms have been set in motion.

But much more needs to be done.

Strengthening judicial review: In disputes between the citizen and the state, the superior courts should have an inherent power to rule on the constitutionality or legality of all governmental action.

The legal problem is that many laws allow no recourse to the courts. Absolute discretions are conferred on the executive.

The executive decision is shielded by an “ouster clause” that prevents judicial review.

Some courageous judges nevertheless intervene to correct ultra vires and unconstitutional actions.

There is, however, no dearth of cases where literal interpretations are given to arbitrary powers and judicial review is refused.

This state of the law should change. Rights without remedies are like lights that do not shine and fires that do not glow.

No legislative or executive action should be immune from judicial review.

There should be no monster called “absolute discretion”.

Restrictions on human rights must be reasonable and proportionate.

Finality or “ouster clauses” should be outlawed. To these ends, Articles 4(2), 9(2), 10(2) and 121 of the Federal Constitution must be amended to underline the inherent power of the superior courts to provide remedies whenever rights are infringed.

Appointments: The composition of the independent Judicial Appoint­ments Commission (JAC) needs to be improved to include all stakeholders like the Bar and the Attorney General’s Chambers.

The recommendations of the JAC should carry more weight. Under the present law, despite the work of the JAC, the executive has the last say in judicial appointments and elevations.

On another plane, diversity within the judiciary needs to be enhanced.

Retirement age: To keep abreast of world trends, we need to increase the retirement age of our superior court judges from 66 to 68 or 70.

Seven Federal Court judges, three Court of Appeal judges and five High Court judges are scheduled to bid farewell to the august institution in 2019.

A critical concern for ongoing reforms and the recently instituted collegiate self-governance is that all four top judges – Chief Justice Tan Sri Richard Malanjum (on April 13), President of the Court of Appeal Tan Sri Ahmad Maarop (May 25), Chief Judge of Malaya Tan Sri Zaharah Ibrahim (May 17) and Chief Judge of Sabah and Sarawak Datuk Seri David Wong Dak Wah (Aug 20) – are all scheduled to retire within the next six months.

However, Wong is eligible for the Article 125(1) six-month extension.

Peer pressure: There are allegations that in the past, hierarchical command and control mechanisms were abused to influence junior colleagues to be partial or to alter their judgments.

Remedies against such abuse of power ought to be devised. The Judges Code of Ethics should be reviewed to reflect and strengthen a collegiate judiciary.

Additional judges and judicial commissioners: Judges should have security of tenure. However, additional judges under Article 122(1A) and judicial commissioners under Article 122AB are temporary appointments and therefore open to executive influences.

We need further reflection on these posts.

Service commissions: At present, there is a combined Judicial and Legal Service Commission under Article 138 to recruit, promote, transfer and discipline lower court judges and officers in the Attorney-General’s Chambers.

This fusion between executive and judicial services must end. To maintain judicial impartiality at the lower court level, where most of the disputes are heard, we need to separate the judicial service from the legal service.

Executive influence: In innumerable laws, the executive is allowed to play a commanding role in judicial affairs.

The Judicial Code of Ethics under Article 125(3B) is drawn up by the Yang di-Pertuan Agong and not by a Judicial Committee.

Under Section 9(1) of the Courts of Judicature Act, if the Chief Justice, President of the Court of Appeal or Chief Judges of the High Courts happen to be absent, the executive has the power to nominate a Federal Court judge to act on behalf of the absentee.

The earlier law was that the most senior judge of that court fulfils the role.

External evaluation: Judicial accountability should be enhanced. In addition to the disciplinary powers of Judicial Tribunals under Articles 125(3) and 125(3A), new procedures should be devised to enable stakeholders to provide feedback on judicial performance.

A complaints mechanism should be put in place to shield aggrieved citizens against judicial corruption, inefficiency and structural defects.

Retired judges: The Judges Code of Ethics should be amended to forbid retired judges from accepting an appointment in any commercial entity for three years following their retirement.

Likewise, the Legal Profession Act should be amended to forbid judges from appearing in court after their retirement.

All reforms are a journey and not a destination. All reforms need the backing of society to make them work. A judiciary with impartiality, integrity and ability is easier to obtain in a society where there is constitutional literacy, constitutional patriotism and an internalisation of the values that make democracy work.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.

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