Constitutionalism and the independence of the judiciary must be protected

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“BEING a judge is a tireless, thankless, and challenging profession. No matter which way you decide, there will always be at least one disgruntled party. You are constantly under watch and scrutiny, not only from the litigants that seek justice before you but from the entire public that remunerates you and trusts that you will set aside your own persona, your own ideals, and your own personal biases in favour of something much larger that you: the Constitution and the law.” – Excerpt from the speech of the Chief Justice of Malaysia, Tun Tengku Maimun Tuan Mat, at the opening of the Legal Year on Jan 8, 2025

Constitutionalism and the independence of the judiciary took centre stage in the speech of the Chief Justice on Jan 8. A little history and a little nostalgia, delivered with cold, hard truths, brought to the fore the challenges that befell the judiciary in the last six years. These are challenges that only an independent and fearless judiciary, true to the rule of law, could have navigated. The Chief Justice’s leadership during this time, together with the support and conduct of the judges, were defining.

Constitutionalism

The Chief Justice made it crystal clear that constitutional supremacy is “here to stay”, pointing out that unlike the United Kingdom where Parliament is supreme, in Malaysia the Federal Constitution is supreme. Article 4 of the Federal Constitution codifies this. Even Parliament, therefore, must act within its confines.

Thus any amendments that are made to the Federal Constitution cannot offend its basic structure, and are open to be struck down under Article 4 if they do. An example are some of the recent constitutional amendments to the Citizenship Laws which, although passed in Parliament by the requisite majority, are open to challenge if they violate the basic structure of the Federal Constitution.

The stark reminder by the Chief Justice was that our founding document, the Federal Constitution, cannot be amended at will, but must in all instances conform to the basic structure of the Federal Constitution.

Judicial independence

The pressures put on the judiciary in the last several years by external forces were clear to many of us who know the signs only too well. It is widely perceived that the previous three governments valued and respected judicial independence more that the current government, which is extremely disappointing, to say the least.

It is evident from the Chief Justice’s speech that we must be ever vigilant to preserve the independence of the judiciary. We have arrived at a point where the Malaysian judiciary is internationally recognised for its independence, putting the country in the best position to attract investments. This is a result of years of the painstaking rebuilding of its weakened structure. Any backsliding into the unfortunate past must be stopped immediately lest the country and its people pay the price once again.

Not everyone is qualified to be a judge. As pointed out by the Chief Justice, judges serve a higher calling requiring not just excellent qualifications, but a special temperament and an ability to hand down judgments without fear or favour, and without succumbing to pressure. It goes without saying that it also requires a sterling character, integrity, and courage.

Hence the importance of the Judicial Appointments Commission and its onerous responsibilities of choosing the best candidates to serve as judges cannot be emphasised enough.

It is therefore of utmost concern when the Chief Justice referenced the offence of interference in the judicial appointments process under the Judicial Appointments Commission Act 2009. Surely this is a serious matter that must receive immediate attention and certainly warrants an investigation.

In countries where authoritarianism thrives, the first casualty is often the independence of the judiciary. Why? Because it is the institution that stands between the people and any abuse of power by the State. It is no wonder that it would be a target of attack by any government that has such leanings.

We, as members of the Malaysian Bar, have a statutory duty to uphold the rule of law and the independence of the judiciary. We have done so in the past, and we must continue to do so. The Chief Justice has sounded the clarion call and we must respond accordingly.

We, the undersigned, commend the courageous words of the Chief Justice and her unwavering commitment to her oath of office, to the Federal Constitution, and to the independence of the judiciary. We must heed her words, for they suggest we are perilously close to losing all that we have fought for in the last 35 years.

ZAINUR ZAKARIA

MAH WENG KWAI

KUTHUBUL ZAMAN BUKHARI

YEO YANG POH

AMBIGA SREENEVASAN

RAGUNATH KESAVAN

LIM CHEE WEE

CHRISTOPHER LEONG

STEVEN THIRU

Past presidents of the Malaysian Bar