The courts are the ordinary person’s last bastion of justice against oppression and injustice, says the writer. — fabrikasimf
MALAYSIA’s judiciary has once again returned to the national spotlight following the Chief Justice’s recent apt reminder that the judiciary must remain independent. This timely reminder has sparked discussions and debates, reigniting long-standing questions about the nature, scope, and responsibility of judicial independence in a democracy like ours.
Undoubtedly, I, like many others, have always supported the need for an independent judiciary – one that is free from fear, favour, or undue influence. The saying rings true: The courts are the ordinary person’s last bastion of justice against oppression and injustice. When other arms of governance fail, it is the judiciary that must step in to uphold the rule of law, safeguard rights, and deliver justice. In this sense, a judiciary that is independent, competent, compassionate, and effective is critical not only to the legal system but also to national progress and the welfare of the people.
However, the conversation cannot end at the mere call for independence. The more nuanced question we must ask is: Independent from whom, and to what extent? Is it simply freedom from executive interference, or does it also include a need to be free from corporate influence, public opinion pressures, or even judicial elitism?
Even more critically, we must ask whether judges themselves fully appreciate the heavy responsibility that comes with this independence. Judicial independence is not a privilege to be used at whim – it is a sacred trust. It is granted not for the comfort of judges, but for the protection of the people. As such, the judiciary must be ever aware that with independence comes accountability, and it must not place itself above public scrutiny or criticism.
In a democracy, the people are ultimately sovereign. Responsible citizens must have the right – not just in theory but in practice – to monitor, comment on, and even criticise the judiciary, especially when its actions raise concerns. The judiciary, therefore, should not be too quick to brand fair and reasoned criticism as contempt of court. Overuse of this doctrine risks turning the courts into untouchable institutions, immune to feedback and public sentiment. Such a stance would be a betrayal of the very principle of independence the judiciary seeks to uphold, for independence without accountability breeds defensiveness, insularity, and even arrogance.
Disagreements on the law even with lawyers are common. Great judges throughout history have always understood this. They were never afraid of disagreement or criticism. Judges must get used to disagreements. In fact, wise judges often welcomed opposing arguments, recognising them as part of the judicial process. I have appeared before judges who actually celebrate differences, even though at the end, some may not agree with me. That’s how the law develops. A judge who becomes personal in the face of disagreement, or who often allows personal feelings to seep into the written judgement, lacks judicial temperament and is arguably unfit for the role.
In a reported case in 1995, Tun Mohamed Eusoff Chin, then Chief Justice succinctly observed, “It is judicially recognised that judicial pronouncements should be judicial in nature and not depart from sobriety, moderation, and reserve. It has been said elsewhere that the pen of a judge should be like the knife of a surgeon which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it. A judge should neither reward virtue nor chastise vice, and his judgment should not display emotion and intemperance as displayed in the judgment of the Court of Appeal here”.
Moreover, while we commonly speak of the separation of powers in terms of the three traditional branches of government – the executive, the legislative, and the judiciary – in Malaysia, we must also consider the unique role of the monarchy. Unlike constitutional monarchies like the United Kingdom where the monarchy is largely symbolic, in Malaysia, royalty continues to play a more substantive role in certain areas. This adds a fourth dimension to our system of governance, which in turn raises further questions about checks and balances within this structure.
So who keeps the judiciary in check? What mechanisms are in place to ensure that judges do not act in excess of their powers or render decisions that are unjudicial in nature?
One built-in check is, of course, the appeals process. Decisions of lower courts can be challenged in higher courts, providing a structural means of correcting judicial error. This recognises that judges, being human, are fallible and capable of misinterpretation or misapplication of the law. But while this mechanism is necessary, it is not sufficient on its own.
The Malaysian judicial system bears the scars of the 1988 judicial crisis, a dark chapter in our legal history that severely eroded public confidence in the judiciary. The legacy of that crisis serves as a constant reminder that independence must not only be protected from external interference but must also be actively cultivated within the judiciary through a culture of integrity, humility, and accountability.
To move forward, Malaysia must consider legal reforms that strengthen judicial integrity without undermining judicial independence. These could include transparent processes for judicial appointments and promotions, regular performance reviews by independent bodies, and greater openness in court proceedings. The call for greater independence of the Judicial Appointments Committee from executive involvement will assist in strengthening judicial integrity. Furthermore, public legal education can play a role in ensuring that citizens understand their rights and the workings of the legal system, empowering them to hold the judiciary accountable.
In the end, judicial independence is not an end in itself, but a means to a larger goal: the delivery of justice. The Malaysian judiciary is aware that its power is derived from the people’s trust. An independent judiciary, yes, but also a judiciary that is humble, open to scrutiny, and truly committed to justice for all.
Senior lawyer Dato’ Sri Dr Jahaberdeen Mohamed Yunoos is the founder of Rapera, a movement which encourages thinking and compassion among Malaysians. The views expressed here are entirely his own.
