Shoring up judicial independence

There are many constitutional safeguards for judicial independence, but there are also some structural, functional and ideological weaknesses in the laws.

THIS column had on April 14, “Judicial appointments ripe for review”, reviewed the law rela­ting to the Judicial Appointments Commission and pointed out some flaws therein.

Today’s column will examine some broader issues that impact on judicial independence, integrity and ability to perform the multiple tasks assigned to our federal courts.

Among these glorious but one­rous tasks are the following – enforcing constitutional supre­macy; safeguarding federal-state division of powers; enforcing the criminal law in a fair and just manner; adjudicating disputes between the citizen and the state whenever the might of the state clashes with the rights of the citizens; and resolving disputes between citizens.

In its interpretative task, the judiciary must provide a consis­tent, coherent and just interpretation of the multiple but interconnected sources of law.

To assist in the performance of the above tasks, the Federal Constitution diligently provides many safeguards.

Institutional separation: The superior courts are structurally separate from and functionally independent of the executive and the legislature (Articles 121 to 131A).

The existence of the judiciary, the judicial hierarchy and the jurisdiction of the courts are prescribed by the Constitution and laws and are not open to tampe­ring by the executive.

However, a significant flaw is that subordinate court judges are part of a fused judicial and legal service under a Judicial and Legal Services Commission headed by the chairman of the Public Services Commission with the Attorney General (or if the AG is disqualified under Article 138(2)(b), then the Solicitor General) as a member.

It is recommended that the judicial service should be separa­ted from the legal service.

The former should be under a High Court judge; the latter should be under the AG who is the government’s chief legal adviser under Article 145(2).

Qualification: The eligibility and qualification for appointment of superior court judges are prescribed by the Constitution (Article 123).

What is remarkable is that Malaysians with foreign law degrees and no familiarity with Malaysia’s supreme Constitution can be called to the Bar or be recruited to the Judicial and Legal Service or be appointed a judge.

Perhaps a short “bridging course” should be introduced to familiarise all graduates from abroad with knowledge and under­standing of our Constitution and the special techniques for its interpretation.

Security of tenure: Superior court judges have security of ­tenure and cannot be dismissed except on the recommendation of a tribunal of their peers (Article 125). This safeguard failed tragically in the 1988 judicial crisis.

Terms of service: Judicial salaries and terms of service in the superior courts are more favourable than those of civil servants (Article 125). These terms can be enhanced but not altered to a judge’s detriment.

Insulation from politics: There are restrictions on parliamentary discussion of judicial conduct (Article 127).

Power to punish for contempt: Judges have the power to punish for contempt of court (Article 126).

Immunity: Judges enjoy absolute immunity in tort and crime for their official work under ordinary laws. This rule should be constitutionalised.

Age of retirement: Under Article 125(1) and (9) of the Federal Constitution, the mandatory retirement age for superior court judges is 66, or if the Yang di-Pertuan Agong extends the age, then 66 and a half.

It is recommended that the law be amended to extend the age of retirement of all superior court judges to 70. This will require an amendment to Article 125(1).

Transfer: The King cannot transfer a superior court judge except on the recommendation of the Chief Justice.

However, there are allegations of occasional abuse of power by past CJs in recommending transfer of judges who fail to toe the line.

Judicial commissioners: Under Article 122AB, judicial commissioners may be appointed for such purpose and such period as the King may wish for facilita­ting the business of the High Court.

Judicial commissioners have the rank of a High Court judge but enjoy no security of tenure. They are, in effect, probationary, short-term judges and their promotion to the High Court depends on the pleasure of the executive.

Accountability: Though immune from the law of crime and tort in the performance of their official functions, judges are not immune from any law in their personal capacities.

Judicial misconduct can be questioned in the Houses of Parliament but only if notice is given by not less than one quarter of the total number of members (Article 127).

A tribunal of peers can be constituted by the King under Article 125(3) and (4) to try a judge with a view to his/her removal.

For lesser wrongs, the CJ may act under Article 125(3A) to refer a judge who is accused of viola­ting the Code of Ethics to “a body constituted under federal law to deal with such breach”.

Article 125(3A) strengthens the CJ’s disciplinary powers over judges.

What is also remarkable is that the Code of Ethics is drafted by the executive under Article 125(3B) and not by a judicial committee.

In extreme cases, a royal commission of enquiry may be set up to investigate judicial affairs.

In practice, these enquiries have led to no reform.

Challenges to independence: Article 121(1) as amended in 1988 provides that judges shall have only such powers as are conferred by federal law.

The intention of this amendment was to destroy the common law notion that judges have an inherent power to scrutinise the legality of all administrative actions.

Some judges, like the Federal Court majority in Kok Wah Kuan (2008), jumped on to the new Article 121(1) bandwagon.

Others courageously clung to the view that despite Article 121(1), Parliament is not supreme and judicial review cannot be ousted on issues of unconstitutionality.

Notable in this latter category is the celebrated minority opinion of Justice Richard Malanjum in Kok Wah Kuan and the scintilla­ting Semenyih Jaya decision in 2017.

Ouster clauses: The legal system is replete with over 100 statutes that seek to oust judicial review by use of ouster, finality or preclusive clauses.

The response of the superior courts to such preclusive clauses is not uniform. There are some tame decisions but also others in which, despite the ouster clause, issues of constitutionality and legality are reviewed.

Other threats: In the matter of threats to judicial independence, traditional theory emphasises independence from the executive.

There are many other dangers that lurk in the shadows. In the Likas election case of Haris Mohd Salleh v Ismail Majin (2000), we learnt that a judge’s freedom of action can be threatened by pressures from his judicial superiors.

We learnt after the “Lingam Royal Commission Report” that judicial integrity can be compromised by influence-peddling lawyers.

Lately, there has been intimidation by pressure groups towards judges who are hearing cases involving racial or religious issues.

Demons­trations are held outside court precincts. The lawyers involved receive death threats. The religious faith of judges is questioned. Yet, the law on contempt of court or on sedition is not invoked.

Judicial independence has lately been compromised by the inability or reluctance of some public officials to obey or enforce judicial decisions.

AG’s power: The AG has the power to institute, conduct or discontinue any criminal proceedings. The AG’s application for a “discharge not amounting to acquittal” often brings an undeserved bad name to the judiciary.

Curtailment of judicial power by Article 121(1A): Since 1988, all civil courts are barred from interfering in matters within the jurisdiction of the Syariah courts.

However, the Constitution is silent on who determines the jurisdictional issue.

In practice, Syariah courts interpret their powers expansively and the civil courts generally acquiesce to this situation. There are some exceptions, however, like the 2018 Indira Gandhi case.

Continuing education: New demands, expectations and needs require a system of continuing legal education and exposure of judges at all levels to the emerging imperatives of the age.

Public-funded institutions like Institut Latihan Kehakiman dan Perundangan (Judiciary and Leg­i­s­lation Training Institute) and the Judicial Academy exist to provide continuous education. Their role needs to be enhanced.

In sum, there are many constitutional safeguards for judicial independence. There are also some structural, functional and ideological weaknesses in the laws.

Our superior court judges are, nevertheless, as free to walk the path of justice as their conviction beckons them to. Many do. The last decade is a testament to that.

Ultimately, the issue is of one character, courage, wisdom and integrity.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is Principal Research Fellow at Universiti Malaya. The views expressed here are his own.