CHAPTER 3
RULE OF LAW & INDEPENDENCE OF THE JUDICIARY: SOME ISSUESShad
Saleem Faruqi
RULE OF LAWThe rule of law is an ideal of good government and
just constitutional arrangements. At its inception it merely
implied a preference for law and order over anarchy and strife. But
over the years the concept has acquired legal, political and
economic implications. Today it overlaps with many other venerated
ideals like those of limited government, constitutionalism, due
process and just legality. Though a precise or comprehensive
definition of the concept is not possible, a few central ideas that
are at the heart of this dynamic ideal can be outlined.
LEGALITY: The rule of law requires that a society must be
governed by a government of laws and not by a regime of arbitrary
powers. There must be supremacy of laws. No person should be
punished or made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the
ordinary courts (Dicey). Government officials must show respect for
the law and must observe the limits on their power.In Malaysia the
existence of a supreme Constitution, the safeguards for an
independent judiciary and the constitutional power of judicial
review, are clear proof that the legal system was built to protect
the rule of law. A regular system of independent courts has existed
since independence. Laws are made by Parliament or its delegates.
No one is deprived of life, liberty or property except under the
law. No summary executions take place. The army and the police are
under civilian control.
Administrative law principles of ultra vires and natural justice
have grown stronger. Ouster clauses in many statutes have lost
force. These developments favour the idea of a government under the
law.
But laws like the (former) Internal Security Act, the Police
Act, Printing Presses and Publications Act and the Official Secrets
Act give unlimited power to the executive. Many non-reviewable and
non-justiciable powers permit uncontrolled executive
discretion.
JUST LEGALITY & HUMAN RIGHTS COMPLIANCE: Adherence to the
law by the state is necessary but not enough. If the system of law
is unjust and oppressive as in apartheid South Africa, then
adherence to it can become an instrument of tyrannical rule. The
rule of law insists on compliance with some substantive human
rights values. The law that reigns supreme must honour and promote
individual freedom and dignity. In this sense, the rule of law is
different from rule by law. Rule of law expresses ideals about
citizen-state relationships. The law must provide safeguards for
liberty, equality and dignity. There must be limits on the powers
of the state to restrict citizens rights. There should be no
backdated criminal legislation. Democratic electoral procedures
must be provided for by the law.
In Malaysia, the supreme Constitution and a large amount of
legislation guarantee political and socio-economic rights. Their
operation shows a mixed record. Elections are held regularly. The
government is representative of the people. Opposition parties and
NGOs are allowed.
But laws like the (former) ISA, Police Act and Printing Presses
and Publications Act prevent citizens from exercising some of their
rights. Articles 149 (on subversion) and 150 (on emergency) permit
suspension of human rights.
CONTROLS ON ADMINISTRATIVE DISCRETION: All powers must be
subject to limits. There must be controls on executive discretion
so that discretionary authority does not degenerate into
arbitrariness. Malaysian administrative law has matured
tremendously over the last few decades. The principles/grounds of
judicial review (ultra vires and natural justice) and the methods
of judicial review (habeas corpus, certiorari, prohibition,
mandamus, injunction, declaration and quo warranto) have expanded.
But constitutional jurisprudence remains in its infancy. There is
still a vast area of non-justiciability which is impervious to
judicial review. IMPARTIAL AND INDEPENDENT SYSTEM OF JUSTICE: To
enforce the rule of law, there must be an independent judiciary
with the power to enforce its verdicts without fear or favour. The
judiciary must be independent and free from extraneous pressures.
It must be invested with all the necessary powers to interpret and
enforce the law and to keep public authorities within the limits of
their competence.SOCIO-ECONOMIC JUSTICE: Food is as important as
freedom, bread as important as the ballot box. Legal guarantees of
human rights are not enough. They must be accompanied by
socio-economic and educational measures so that formal rights can
find expression in reality and the individual can realize his
dignity. There must be vigorous state support for socio-economic
policies to help the weak, the oppressed and the marginalised. The
state must be involved in social amelioration schemes to bring
welfare to those who, for whatever reason, are unable to actualize
their freedoms and rights. The state must be committed to the
welfare, rights and dignity of its citizens.In Malaysia, political
stability, economic prosperity and welfare policies have ensured
that this dimension of the rule of law is well protected. But the
existence of corrupt practices often prevents welfare policies from
assisting those they were meant to help.
EFFECTIVE GOVERNMENT: The threat to the rule of law comes as
much from abuse of liberty as from abuse of power. The government
must be capable of enforcing law and order, preventing civil war,
civil disorder and ensuring socio-economic and legal justice. Crime
should be controlled.
Citizens as well as officials should show fidelity to the law.
They should respect the results of the legal and electoral
processes in which they have participated. In Malaysia, the
machinery of government is effective, if not always responsible and
responsive.
RULE OF LAW: DIFFICULTIES & DILEMMASIn a rule of law
society, judges play the critical role of enforcing the
requirements of legality, safeguarding human rights, controlling
executive discretion and providing an impartial and independent
system of justice. This task is full of challenges and painful
dilemmas. UNJUST LAWS: What if the law that comes before a court is
unjust or clearly out of tune with the felt necessities of the
times? Rigid compliance with it will confirm leftist criticisms
that the judiciary goes through the formal motions of justice but
is actually part of the machinery for reinforcing societys
inequitable status quo. In such situations should judges interpret
the law creatively to shade in moral colours? From amongst a wealth
of rules of interpretation should the judges choose those rules
that impose a literal, formal, and strict interpretation or should
they choose rules of construction that permit creativity and
activism?
Given the fact that law is not always synonymous with justice,
every judge, at one time or the other is confronted by substantive
or procedural laws that are inequitable. He has to search within
his soul as to his proper role. In such a situation his support for
the rule of law is much more than simply affirming and mechanically
enforcing the legality dimension. His task is complex,
contradictory, rich and multi-dimensional.
GAPS IN THE LAW: What if there are gaps or omissions in the law?
Should judges expand the horizons of human rights by reading into
our Basic Law some implied, un-enumerated, non-textual rights. For
example could an expeditious trial be read as part of the guarantee
of personal liberty in Article 5(1)? Could the need for legal
representation for an indigent in a criminal trial be read into the
constitutional ideal of equality before the law? CONSEQUENCES OF
LAWS: What if desirable laws lead to undesirable results? For
example, what if development policies benefit the entrepreneurs but
devastate other members of society like the orang asli or the
natives by depriving them of their essential basic needs? What if
under a strict interpretation of the law, the affected communities
have no locus standi? Should the rules of locus standi be
liberalized? Should public interest litigation be permitted? In
Nordin Salleh the court gave approval to the doctrine that in
determining the constitutionality of legislation, judges can go
beyond the formal content of the law to examine the actual
consequences of the legislative measure. JUDGES HAVE NO MANDATE TO
MAKE LAWS: Wherever the law is unjust, incomplete or leads to
undesirable results, there are no simple, right answers about how
judges should react to the problems at hand. On the one hand, a
non-elected, non-political judiciary, wedded to the doctrine of
separation of powers, cannot embroil itself in the vast task of law
reform or social amelioration and must leave social justice to
other organs of the state. On the other hand it must be
acknowledged that there is a wealth of precedents from the USA, UK,
India and even Malaysia where the judiciary has, through creative
interpretation of the generic provisions of the Constitution,
provided for implied rights; granted protection against race and
gender discrimination; and condemned practices that marginalize the
poor, the minorities, the disabled and the disadvantaged. ROLE AND
FUNCTION OF A DEMOCRATIC JUDICIARYAt the functional level, the
Constitution envisages a rich variety of functions for the courts
in order to preserve the rule of law and constitutionalism in the
country.ADJUDICATORY ROLE: The courts supply a dispute-resolving
mechanism whenever the rights of citizens clash with the rights of
other citizens or with the power of the state or when various
organs of the state disagree over the scope and extent of their
jurisdiction. Each peaceful resolution of a dispute affirms the
triumph of law over naked power and fortifies the belief that in a
civilised society differences need not be settled by the clash of
arms or through trial by battle but by rational argument, evidence
and proof.
PENAL FUNCTION: In the field of criminal law, the courts
legitimise the application of institutionalised sanctions against
transgressors of the law.
ENFORCING CONSTITUTIONAL SUPREMACY: In a country with a written
and supreme Constitution which displaces parliamentary sovereignty,
the courts have the momentous power and duty to review legislative
and executive actions on the ground of unconstitutionality. Article
4(1) declares in unmistakable language that this Constitution is
the supreme law of the Federation and any law passed after Merdeka
Day which is inconsistent with this Constitution shall, to the
extent of the inconsistency, be void. Article 162(6) permits the
courts to invalidate or modify pre-Merdeka laws that contravene the
Constitution. The implications of these provisions are that in
Malaysia neither Parliament nor the Government is supreme. Some
core, constitutional values are safeguarded against the power of
elected assemblies. The courts have the power to determine whether
an enactment or statute is valid under the Constitution. The
citizen is entitled to go to the hallowed halls of the judiciary to
challenge the validity of any government action on the ground of
unconstitutionality.JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION:
In an age of expanding administrative activity, the courts are
entrusted with the crucial duty of ensuring that the bureaucracy
stays within the limits of its powers. The legal tools for
achieving this aim are the notion of constitutionality, the
administrative law doctrine of ultra vires and the principles of
natural justice. The principles of constitutional and
administrative law are backed up by statutory, common law and
equitable remedies. The most prominent public law remedies are the
writ of habeas corpus, the prerogative orders of certiorari,
prohibition and mandamus, the equitable relief of injunction and
the common law remedy of declaration.
The power of judicial review is believed to be an inherent power
of the courts. The power exists even if not conferred by statute.
It is implicit in the doctrine of separation of powers. It is part
of the theory of check and balance in common law countries that the
courts must ensure that every institution and every functionary of
the state must stay within the limits of its or his competence. It
is on this basis that the courts entertained the challenge to an
emergency declaration in Stephen Kalong Ningkan v Government of
Malaysia [1968] 2 MLJ 238. In Sim Kie Chon v Supt. of Pudu Prisons
[1985] 2 MLJ 385 the exercise of the power of pardon was litigated
(though unsuccessfully) in the courts.
Deprivation of citizenship cases have attracted judicial
scrutiny in cases like Lim Lian Geok v Minister [1964] 1 MLJ 158.
It is noteworthy that in all the above examples, either the law did
not confer on the citizens an explicit right of appeal to the
courts or the Constitution or the statute explicitly barred
judicial review. But the courts were not deterred from examining
the constitutionality or vires or the natural justice dimension of
the administrative action. The judicial attitude is that appeal may
be excluded but review is still available. Even if judicial review
is statutorily ousted, the administrative decision is final only if
it is valid. An invalid decision is a nullity and courts can
interfere.
Viewing the issue of judicial review from the citizens
perspective, it is arguable that the right to go to the courts is
an implied aspect of personal liberty in Article 5 and a
constituent part of the promise of Article 8s equal protection
under the law.
BALANCE WHEEL OF FEDERALISM: In the federal set-up of Malaysia,
the judiciary has been given the role of providing the balance
wheel of federalism by adjudicating disputes between the Centre and
the States and the States inter se.SAFEGUARDING HUMAN RIGHTS: In
the United Kingdom there is no written Constitution and no judicial
review of legislative and executive acts on the ground of
unconstitutionality. But in Malaysia the Constitution in Articles
4(1), 128(1), 130 and 162(6) explicitly confers on the superior
courts the power and duty to preserve, protect and defend the basic
charter against all those who would lay rash hands upon the ark of
the Constitution.
The superior courts are the ultimate arbiter of disputes between
the citizen and the state. The courts determine the constitutional
validity of executive and legislative acts. They delineate the
legal line beyond which the might of the state cannot trump the
rights of citizens. In a Constitution with a chapter on fundamental
liberties, the judiciary has been given the vital role of
reconciling the conflicting demands of power and liberty, freedom
and responsibility and the might of the State and rights of the
citizens.
In Articles 5 to 13 several fundamental liberties are guaranteed
to all persons. Various other rights are enshrined in other parts
of the Constitution. For example, Articles 14 - 22 enshrine the
right to citizenship. Article 119 confers the right to franchise.
Article 128 guarantees the right to go to the courts to seek
judicial review on constitutional grounds. Article 135 safeguards
public servants against arbitrary dismissal or reduction in rank.
Article 147 protects pension rights. Article 151 grants some
procedural safeguards to all preventive detainees.
INTERPRETING LAWS: The interpretive function of the courts
requires judges to interpret static clauses of the Constitution and
statutes in such a way as to give them life and meaning. If the law
has ambiguities the judge has to remove them by recourse to a
wealth of rules of interpretation. Interpretation is an art in
which the golden rule is that there are no golden rules.
Interpretation is influenced by the judges perception of his role
at the heart of the legal system.
In performing the interpretative task the judge may adopt a
literal or a liberal approach. Literal approach:The strict
constructionists believe that the Constitution should be
interpreted in accordance with the original intention of its
framers. The plain language of the provision and its grammatical
and ordinary sense should be given effect. Deference should be paid
to the enactments history.
In this spirit it was observed in Datuk Harun v PP [1976] 2 MLJ
116 that the court is not at liberty to stretch or pervert the
language of the Constitution in the interests of any legal or
constitutional theory, or even, for the purpose of supplying
omissions or of correcting supposed errors. Similarly, it was
stated in Jabar v PP [1995] 1 SLR 617 that any law is valid and
binding so long as it is validly passed. The court is not concerned
with whether it is also fair, just and reasonable
Liberal approach:On the other hand, the activists or legal
realists argue that the interpretive task is unavoidably creative
because legal words do not have a self-evident meaning. Expressions
such as personal liberty, life, law, property, adequate
compensation, religion and emergency are not nicely cut up and
dried. It is for judges to give life and meaning to the cold
letters of the law. If the law has gaps, as it often does, the
judge has to fill them by reaching out beyond formal rules to
principles, presumptions, doctrines and standards that are part of
the majestic network of law. If the law has conflicts, as it
invariably does, the judge has to set out on the task of bringing
harmony and consistency where none existed.
The judge has to make explicit what is merely implicit in the
law. He has to crystallise what is inherent. He has to adapt the
law of a bygone era to the needs of a developing and changing
society. His interpretive task is creative, not mechanical.
Further, the glittering generalities of the Constitution need to
be interpreted dynamically because a Constitution is not made
merely for the generation that then existed but for posterity. The
static clauses of a constitutional instrument cannot calculate for
the possible change of circumstances. In the words of Woodrow
Wilson the Constitution is not a mere lawyers document: it is a
vehicle of life, and its spirit is always the spirit of the age.
Judges have a duty to determine, independently of any historical
limitations, the contemporary, core, constitutional values that
deserve protection.
A pragmatic rather than dogmatic approach to the interpretation
of the basic charters provisions should be adopted. Judges should
be receptive to the felt necessities of the times and their
interpretations should show suppleness of adaptation to changing
needs. They should adjust legal principles to changing social
conditions and should assist in social engineering.
Ronald Dworkin, an Anglo-American jurist recommends that
interpretation should be based on rights and principles. The
provisions of the Constitution should be viewed holistically in the
context of the entire system of laws and with regard to the moral
principles, doctrines, standards and framework assumptions that are
implicit in the basic law. Interpretation should be morally charged
and constructive. Its fundamental purpose should be to safeguard
textual as well as non-textual rights, and to enforce
constitutional constraints on the power of government.
In this vein it was observed in the Singapore case of Ong Ah
Chuan v PP [1981] 1 MLJ 64 that in a Constitution that purports to
assure fundamental liberties, all references to law refer to a
system of law which incorporates the fundamental rules of natural
justice.
Instead of a literal construction, a purposive interpretation
should be adopted. The central concern should be with purposes, not
meanings. In Liyanage v R [1967] 1 AC 259 the Privy Council
declared a statute unconstitutional not because it infringed any
express constitutional provision but because it compromised
judicial independence and was contrary to the constitutional scheme
of things. Likewise in Dato Yap Peng v PP [1987] 2 MLJ 311 a
provision of the CPC was invalidated because it conferred on the
executive a power to transfer cases which the court regarded as
being part of the judicial function.
A Constitution differs fundamentally in its nature from ordinary
legislation passed by Parliament. Canons of construction applicable
to ordinary statutes should not be applied rigidly to
constitutional instruments. In Dato Menteri Othman Baginda [1981] 1
MLJ 29 the court expressed the view that on constitutional issues,
previous precedents need not be strictly followed. They must be
subjected to a situation-sense. Further, a Constitution being a
living piece of legislation must be construed broadly and not in a
pedantic way with less rigidity and more generosity than other
Acts.
In Teh Cheng Poh [1979] 1 MLJ 50 it was observed that in
applying constitutional law the court must look behind the label to
the substance. Thus the governments labelling or description of a
law as a piece of subsidiary legislation could not camouflage the
fact that it was an Ordinance promulgated by the Yang di-Pertuan
Agong long after Parliament had come back to session and,
therefore, unconstitutional.
Determining whether statute is sui generis or pari materia: All
strict constructionists as well as some liberals are agreed that
every Constitution is sui generis a class by itself. It must be
interpreted within its own four walls and according to the nations
prevailing conditions. Context must determine content. In Loh Kooi
Choon [1977] 2 MLJ 187 federal judge Raja Azlan Shah (as DYMM
Sultan Perak was then) said: Our Constitution now stands in its own
right (its) wording cannot be overridden by the extraneous
principles of other Constitutions. However, in contrast with the
sui generis approach is the idea that if two statutes are pari
materia or sufficiently similar in their materials, then the
decisions in relation to one are relevant to the other.
Whether a statute is sui generis or pari materia with a similar
statute is not always self-evident. Judges have a subjective choice
and much depends on what result they wish to achieve. Malaysian
approaches:As in other countries judicial attitudes over the last
55 years have not been entirely consistent. Nevertheless, a few
cautious generalisations can be made.
The principle of constitutional supremacy, boldly proclaimed in
Article 4(1), is more notional than real. Over the last 55 years,
Malaysian courts have shown extreme reluctance to invalidate
parliamentary legislation on the ground of constitutionality. The
judges seem to be steeped in the British tradition of parliamentary
supremacy which has no legal basis here.
The English philosophy of legal positivism seems to hold sway
here even though it has suffered setbacks in its own homeland. This
philosophy treats law as lex (enacted law), not jus (justice) and
recht (right). It forbids judges from examining the morality,
justice and reasonableness of laws. It promotes a literal and
narrowly logical interpretation of the law and discourages a
purpose-oriented, moralistic or historical approach. It identifies
law solely with state action and denies legal validity to custom
and morality. In Chiow Thiam Guan [1983] 2 MLJ 116 the judge
stated: The law may be harsh but the role of the courts is only to
administer the law as it stands. In Loh Kooi Choon [1977] 2 MLJ 187
it was stated: The question whether the impugned Act is harsh and
unjust is a question of policy to be debated and decided by
Parliament, and therefore not fit for judicial determination. One
wonders why legal positivism should have such ready acceptance in
an Asian society where religion, system of ethics, customs, the
family and other institutions interact to preserve order and give
direction to society?
The doctrine of strict separation of powers as propounded by the
French philosopher Montesquieu has no application in Malaysia. Yet
it is on this doctrine that judges often rely to justify their
refusal to review executive and legislative acts: Mohd Yusof
Mohamad v Kerajaan [1999] 5 MLJ 286. It is submitted that the
motive force of the Malaysian Constitution is not in strict
separation of, but in a balance amongst the various organs of
State. Power of one organ was meant to check the power of
another.
In the area of fundamental rights the courts seem to have
created gradations among liberties showing preference for some
liberties over others. Thus, tenderness is shown for protection
against double jeopardy and for the right to property but personal
liberty, equality, speech, assembly and association are made to
give way to the overriding need for stability, order and security.
In these areas, fundamental rights are treated as if they were
ordinary statutory rights subject to the power of an English-style,
supreme Parliament.
Great reliance is placed on decisions of English courts.
American and Indian precedents, which should be more persuasive
because of similar supreme constitutions, are brushed aside as too
idealistic. This preference for English decisions may have been
justified in the early years after Merdeka when we were linked to
Britain by an umbilical cord. It is not so now. The courts have
generally shunned activism and have rejected many landmark
precedents from other countries that limit the powers of Parliament
e.g. that the basic structure of the Constitution cannot be
tampered with; and that Parliament can delegate but cannot
abdicate. At the central government level a vast array of
discretionary powers of the executive remain non-justiciable
despite gallant efforts to convince the courts that arbitrary
powers are an affront to constitutional supremacy and to equal
protection under the law.
Issues of constitutional law are often reduced to issues of
administrative law. For example in Persatuan Aliran v Minister
[1988] 1 MLJ 442 the denial of a printing permit under the Printing
Press and Publications Act was challenged as a violation of Article
10 (free speech), Article 8 (equality before the law) and Article
152 (Bahasa Melayu as official language). The court dismissed the
constitutional issues summarily and went on to decide the case
against the applicant on the principle of ultra vires in
administrative law. However, in the last 20 years or so stirrings
of judicial activism have been felt. In cases like Tan Tek Seng
[1996] 2 AMR 1617, Hong Leong [1996] 1 MLJ 46 and Sugumar
Balakrishnan [1998] 3 MLJ 289, administrative law principles of
natural justice and reasonableness have been linked with the
Constitution. These laudable administrative law principles are now
regarded as implicit aspects of the constitutional guarantees to
due process and equal treatment. The courts have suggested that
arbitrary powers and harsh penalties are violations of equality
before the law.
In recent cases, the expression life in Article 5(1) has been
interpreted to include the necessities of life like employment; the
horizons of personal liberty have been expanded to include the
right to seek judicial review; and ISA detainees have been freed
because of denial of right to see a lawyer.
Clearly, the Constitution is moving from the peripheries to the
centre. Some judges, notably FCJ Gopal Sri Ram supplanted British
common law with the supreme Constitution as the fountain from which
principles of judicial review of administrative discretion
flow.
Are these developments harbingers of a renaissance in
constitutional law? Or are they the proverbial first few swallows
that do not a summer make? It remains to be seen. We can only hope
and pray as we salute 55 years of independence.GOVERNMENT
PROCEEDINGS: Several statutes exist to permit and enable the
citizen to take the Government to court. Under the Government
Proceedings Act 1956, subject to some exceptions, the Government
can be sued for breach of contract or for a tortious wrong as if it
were a private person of full age and capacity. The Specific Relief
Act 1950 permits the citizen to apply for a number of judicial
remedies against the Government.
IMPORT OF BRITISH LAW: Sections 5 and 6 of the Civil Law Act
1956 permit judges wide discretion to import English common law,
equity and statues into the legal system to fill lacunas in our
laws. But this power is exercisable subject to such qualifications
as local circumstances render necessary. Courts have wide
discretion to import or to exclude British common law and
statutes.In sum the role of the courts is one of multi-faced
activism and creativeness.
INDEPENDENCE OF THE JUDICIARY
INDEPENDENCE FROM WHOM? In traditional constitutional theory,
independence of the judiciary connoted independence from the
political executive. We are now learning that a judges freedom of
action can also be threatened by pressures from his superiors
within the judicial branch. In addition, the challenge to judicial
independence from the religious establishment is not unknown. There
is also the danger of pressure or inducement from private,
political and commercial centres of power.INDEPENDENCE FROM WHAT?
Public confidence in the integrity, impartiality and independence
of the judiciary is vital. Unfortunately, integrity and
impartiality are personal attributes that no law can ensure. The
Constitution can only provide some safeguards against interference.
Whether the appointees will have the character, the courage and the
intellectual capacity to soar above the timberline of the trivial,
to transcend race, religion, and region and to cast aside prides,
prejudices and temptations that afflict ordinary mortals cannot be
guaranteed.
SAFEGUARDS: To promote public confidence in our system of
justice, the independence of the higher ranks of the judiciary is
guaranteed by the Constitution. To preserve judicial independence
and integrity, Articles 121-131A of the Constitution incorporate
several safeguards into the fabric of the law. 1. INSTITUTIONAL
SEPARATION OF THE JUDICIAL BRANCH: Even thoughthere is no explicit
mention of the doctrine of separation of powers in the
Constitution, the overall constitutional scheme is to devise
institutional as well as functional separation of the judicial
organ of the state at least at the superior court level. Superior
court judges are disqualified from membership of the executive or
legislative branches. However, inferior court judges are members of
the unified Judicial and Legal Service of the Federation.The
existence of courts, the judicial hierarchy, and the jurisdiction
and composition of the courts are prescribed by the law and are not
open to tampering by the executive. The Constitution prescribes the
maximum number of judges for the superior courts so that it is not
easily possible for the government to pack the courts with
political nominees. Under Articles 122, 122A and 122AA, the maximum
numbers are prescribed. The maximum number of judges for the
Federal Court is eight. For the Court of Appeal, it is eleven. The
membership of the High Court in Malaya should not exceed
forty-seven.
In the High Court in Sabah and Sarawak the number should not
exceed ten.
However in a contradictory move the Constitution gives power to
the King to increase the number of superior court judges. This may
arouse suspicion that court packing is possible even though the
intention of the law is to permit the King to increase judicial
manpower to cope with the backlog of cases.
2. QUALIFICATIONS: The Constitution in Article 123 prescribes
two formal rules of eligibility for appointment to the Federal
Court, Court of Appeal and the High Courts. First, the nominee must
be a citizen whether by operation of law, registration or
naturalisation. Second, he or she must possess the minimum
professional experience of being for the ten years preceding his
appointment an advocate of (the) courts or a member of the judicial
and legal service of the Federation or of the legal service of a
State The words for the ten years preceding his appointment are not
entirely clear. Two contentious issues have washed up at our
judicial shores. First, whether the ten years preceding must be
immediately preceding; or whether 10 years of accumulated
experience over a longer period of time would suffice. For example,
if an advocate and solicitor of eight years standing took time off
from legal practice to teach full time at a law faculty for a few
years, does the break from active legal practice cause him to
forfeit the eight years as a legal practitioner? If he is
considered for a judicial post, should he serve another ten years
at the Bar or only two more to satisfy the 10-year requirement? For
an appointment to the Industrial Court (which is inferior to the
High court), it has been held that the ten years must be
continuous.
A second contentious issue is whether the experience at the Bar
must be in active legal practice with a practising certificate or
whether it is sufficient to be called to the Bar ten years
preceding the appointment? This issue is engaging the Federal Court
in the case of Prof. Dr. Badariah Sahamid who was appointed a
Judicial Commissioner on March 1, 2007. The learned Judicial
Commissioner had been called to the Bar in 1987 but she chose to
immerse herself in teaching and research. She served with
distinction at the Faculty of Law at University of Malaya as Dean
and lecturer. She wrote law treatises. She was a member of the
professional qualifying board overseeing the CLP programme. It is
arguable that once called to the Bar she is lawfully an advocate of
those courts and, therefore, eligible for elevation to the Bench.
It speaks badly of a legal system and of the legal fraternity that
there should be attempts to bar a distinguished academician from
the Bench because she imparted lawyering skills at the Faculty but
did not practice them in the courts. Many lawyers do neither. They
renew their certificates but rarely, if at all, appear in
court.
3. METHOD OF APPOINTMENT: Around the world judicial appointments
follow one or more of the following procedures:
Aspiring candidates apply or are nominated.
A Judicial Nominating Commission scrutinizes the applications or
nominations and recommends two or three best qualified candidates
to the executive.
The executive makes the formal appointment.
There is a procedure for confirmation by the Senate (as in the
USA) or by some other confirming body.
In the USA, State judges are elected by the people.
In Malaysia after the passage of the Judicial Appointments
Commission Act there is now a special body to recommend names to
the Prime Minister. Side by side with this, Article 122B requires
an extensive, multi-layered process of consultation between the
Prime Minister, senior-most judges, the Yang di-Pertuan Agong and
the Conference of Rulers.
When a vacancy arises, other than to the post of the Chief
Justice of the Federal Court, the Prime Minister must take counsel
with the Chief Justice: Article 122B(2). In addition, the President
of the Court of Appeal and the Chief Judges of the High Courts are
consulted by the Prime Minister on appointments to their courts:
Article 122B(4). For the appointment of the Chief Judge of the High
Court in Sabah and Sarawak, the Chief Ministers of the States are
also taken into confidence: Article 122B(3).
The Prime Minister then advises the Yang di-Pertuan Agong. His
Majesty is required to act on advice but only after consulting the
Conference of Rulers: Article 122B(1). The Conferences role is one
of check and balance. It has the power and duty to scrutinize, to
call for further information, to delay, to caution and to warn.
However, it does not have the power to veto the governments
proposals. Consultation is not the same thing as consent. The Prime
Minister has a duty to give due consideration to the views of the
Conference, the Chief Justice, the President of the Court of
Appeal, the Chief Judges of the High Courts, the Chief Ministers of
Sabah and Sarawak and the Judicial Appointments Commission but none
of them has the right to insist that his/its views must be obeyed.
How much weight must be assigned to each view is a matter of
constitutional convention and not of law.4. SECURITY OF TENURE:
Unlike civil servants, superior court judges have permanency in
their tenure. They cannot be removed from office by Parliament as
in the USA and UK. Nor can the executive dismiss judges summarily
as was the colonial practice in the days before Merdeka: Terrel v
Secretary of State for Colonies [1953] 2 QB 482.
Procedure for dismissal of a judge: Under Article 125 clauses
(3) and (4), if representations are made to the Yang di-Pertuan
Agong that a judge ought to be removed on the ground of breach of
the Code of Ethics, inability from infirmity of body or mind or any
other cause to discharge the functions of his office, the Yang
di-Pertuan Agong may appoint a judicial tribunal of not less than
five local or commonwealth judges, either retired or serving, to
investigate the allegation and to make recommendations on the case
to the King.
Under Article 125(3), the initiative for the appointment of the
tribunal can come from the Prime Minister (as in the case of the
tribunal to try Tun Salleh in 1988) or from the Chief Justice after
consulting with the premier (as in the case of the tribunal to try
another five Supreme Court justices in 1988). The initiative must
be in the form of a representation to the King that a judge ought
to be tried for one of two reasons. First, for breach of the
Judicial Code of Ethics. Second, on the ground of inability, from
infirmity of body or mind or any other cause, to discharge the
functions of office. On receiving the representation, the King
cannot act summarily or arbitrarily. Under Article 125(4) he is
obliged to appoint a tribunal and refer the representation to it
and act only on the findings of the tribunal.
Penalty: The tribunal can recommend dismissal under Article
125(3) or some other sanction under Article 125(3B).
Suspension: Pending the report of the tribunal, the judge on
trial can be suspended from office in accordance with Article
125(5) and (9).
Composition of the tribunal: The Constitution admirably requires
that judges must be investigated by their brother or sister judges
and not by the executive or the legislature. The firm principle
behind Article 125(3) and 125(4) is that judges must be judged by
their peers. Under Article 125(4) the tribunal must consist of no
fewer than five present or past, local or Commonwealth judges.
Proceedings before the tribunals: The Constitution is silent on the
procedure to be employed by the tribunal. The common law rules of
openness, fairness and impartiality should, therefore, apply. The
tribunal is bound by principles of natural justice to give to the
accused a fair opportunity to answer the grounds on which his
removal is sought.
The Tun Salleh episode: The constitutional safeguards against
unfair dismissal of judges were severely tested in the tragic
events of 1998 which shook the judiciary. Many flaws in the laws
were detected.
It was alleged that contrary to the constitutional scheme, the
Yang di-Pertuan Agong had taken the initiative to put Tun Salleh a
before the tribunal? It is alleged that the Yang di-Pertuan Agong
was angered by the Lord Presidents letter to him and had told the
Prime Minister that Tun Salleh should be sacked. It is submitted
that though the initiative to try a judge must come from the Prime
Minister or the Chief Justice, there is nothing improper about the
Yang di-Pertuan Agong referring an alleged judicial misconduct to
the Prime Minister and to seek the premiers counsel on the matter.
It was noted that Article 125(4) is silent about the seniority of
tribunal members in relation to the judge to be tried. Several
judges on the Tan Sri Hamid tribunal to try Tun Salleh were rather
junior in standing. A number of very senior retired judges were
available but were not picked. The law in Article 125(4) is in
contrast with the general rule laid down in Article 135(1) and
innumerable other statutes that members of a disciplinary board
should not be inferior in rank to the officer to be tried. It is
not clear why the Government appointed six (an even number) of
judges to the Tan Sri Hamid Tribunal? Was it, as alleged, to give
to the Chairman, Tan Sri Hamid, an extra casting vote in case of a
tie?
The Speaker of the Dewan Rakyat (who was a former High Court
judge) was appointed a member. Besides his juniority as a judge at
the time of his retirement, his association with Parliament should
have disqualified him. His selection was a violation of the spirit
of the Constitution that judges should be tried by their peers.
The Chairman, Tan Sri Hamid, should have disqualified himself
because he participated in the Kuala Lumpur meeting that led to Tun
Sallehs letter of complaint to the King.
Tan Sri Hamid was also disqualified under the rule against bias
nemo judex in causa sua because as the Acting Lord President he
would benefit from Tun Sallehs removal?
In a matter as grave as the dismissal of the Lord President, it
was necessary that the accused Lord President be heard. He was
invited to attend but refused because of his objections to the
composition of the tribunal. More time should have been given to
sort out the legal issues and the challenges before the court. It
was improper for the Tribunal to proceed in haste in the absence of
Tun Sallehs counsel.
It was improper for the High Court to delay the hearing of Tun
Sallehs application to the High Court for an injunction against the
Tribunal.
It was improper for Tan Sri Hamid, Acting Lord President and
Chairman of the Tribunal, to interfere with the working of the
Supreme Court registry when Tun Salleh sought to apply for an
urgent appeal to the Supreme Court against the High Court refusal
of his application for injunction.
It was improper for Tan Sri Hamid (the defendant in the case) to
telephone Justice Seah who was slated to hear Tun Sallehs
application against the Tribunal that was presided over by Tan Sri
Hamid.
It appeared rather harsh for the King to suspend the three
senior judges (Justices Wan Sulaiman, Seah and Abdoolcader) who
agreed to hear Tun Sallehs petition. The judges were acting in the
finest tradition of the judiciary to hear out a complainant.
It appeared rather harsh for the second tribunal to dismiss Tan
Sri Wan and Tan Sri Seah for misconduct. Their misconduct was
nothing but a simple and courageous performance of a judicial duty
to hear an urgent case. It was also noted that the gilt-edged
provision of Article 125(4) that judges must be tried by their
peers, results in the ironic situation that justices who would
benefit from the removal of the accused are allowed to sit in
judgment over him. This is a violation of the nemo judex in causa
sua rule of natural justice that a person should not be a judge in
his own cause.
New procedure for lesser wrongs: On January 19, 2006, a new
provision, Article 125(3A), was inserted to permit the Chief
Justice to refer minor breaches of the Code of Ethics to a body
constituted under federal law to deal with such breach.
Representation to the King under Article 125(3) need not be made. A
sanction other than removal may be handed down.
What the composition of this new disciplinary body will be
remains to be seen. Will judges continue to be tried by their peers
or will outsiders man the new tribunal? What is clear is that due
to the cataclysmic events of 1988 and the consequent amendments to
the Constitution, judicial conduct will remain in the
limelight.
Judges excluded from safeguards: Rules about security of tenure
laid down in Article 125 do not apply to several categories of
judges and persons performing judicial functions. Among them are:
the additional judge of the Federal Court appointed under Article
122(1A), Judicial Commissioners appointed for limited durations
under Article 122AB, judges of Sessions and Magistrates Courts (who
are answerable to the Judicial and Legal Services Commission under
Article 138), Syariah court justices (who are appointed under state
laws) and chairpersons of statutory tribunals (whose terms of
service and tenure are derived from the enabling law that created
the tribunal).
5. TERMS OF SERVICE: Alexander Hamilton once wrote that next to
permanency of office, nothing can contribute more to the
independence of the judges than a fixed provision for their support
In the general course of human nature, a power over a mans
subsistence amounts to a power over his will.
In Malaysia superior court judges enjoy terms of service that
are more favourable than those of civil servants. Under Article
125(1) their retirement age is 66 years and can be extended by six
months by the Yang di-Pertuan Agong. In mid-2007, the Chief
Justice, Tun Ahmad Fairuz is reported to have written to His
Majesty for an extension of his term that was to expire on October
31, 2007. The extension was not granted despite the belief that the
Prime Minister was in favour of the extension.
Under Article 125(7), judicial salaries and other terms of
service including pension can be improved but cannot be changed to
their detriment. Under Article 122C the Yang di-Pertuan Agong
cannot transfer a High Court judge except on the recommendation of
the Chief Justice who, in turn, consults the Chief Judges of the
High Courts.
But in the matter of promotion, seniority is not always taken
note of. This contrasts with countries like Pakistan where
disregard of seniority is seen as executive interference with
judicial independence. Promotions are in the hands of the King who
acts on the Prime Ministers advice after consultation with the
Conference of Rulers. The PM in turn consults the Chief Justice,
the President of the Court of Appeal and the Chief Judges of the
High Courts on appointments to their courts: Article 122B.
6. INSULATION FROM POLITICS: To protect the judiciary against
politically inspired criticisms, Article 127 bars parliamentary
discussions of the conduct of judges save on a substantive motion
supported by not less than one quarter of the members. Under
Article 125(6) the remuneration of judges is charged on the
Consolidated Fund and is thereby excluded from the politically
charged budget debate.
By statute judges are disqualified from membership of either
House of Parliament or the State Assemblies. Conventionally they
refrain from any activity that would draw them into controversy.
But the rigor of this convention varies from country to country. In
some like the UK, judges withdraw from public life. In others like
Malaysia, judges retain links with social, sports and non-political
organisations. This is not altogether a bad thing because contacts
with societal organisations enable judges to be within hearing
range of the pulse-beats of the nation.In Majlis Peguam v Raja
Segaran a/l Krishnan [2005] 1 MLJ 15, the insulation of judges from
politics was elevated to the status of a total immunity against
criticism. The Bar Council had called an EGM in June 2000 to
discuss allegations of impropriety allegedly committed by the then
Chief Justice. The Court of Appeal held that the net effect of the
EGM would be to censure the judiciary and to permit discussion of
the conduct of His Majestys judges in flagrant disregard of
Articles 125 and 127 of the Constitution. An open discussion of the
conduct of His Majestys judges could amount to questioning the
wisdom of the King in his selection. Openly criticizing the
judiciary could bring about public misunderstanding of the system
and would then produce unwarranted public misgivings. With all due
respect, Articles 125 and 127 nowhere require that judicial
misconduct should be immune from public scrutiny. Any words or
actions are, of course, subject to the law of defamation, sedition
and contempt of court.7. CONTEMPT OF COURT: Article 126 of the
Constitution confers on the courts the power to punish for contempt
any person who, by word or deed, interferes with the administration
of justice or challenges the dignity or independence of the
courts.
The law on contempt of court was developed by the common law
courts to protect the independence and integrity of the judiciary,
to maintain the authority of the courts, to prevent interference
with the administration of justice and to secure public confidence
in the nations system of dispute-resolution. To this extent the law
deserves our vigorous support.
Sadly, there is a darker side to the law. Rules governing
contempt of court shackle the media. In a criminal case a few years
ago the law impeded a defence lawyer from introducing evidence that
the judge regarded as contemptuous. In scores of instances lawyers
accusing judges of misconduct or bias have ended up being convicted
for scandalising the judiciary. In Majlis Peguam v Raja Segaran
[2005] 1 MLJ, the Bar Council was restrained by the courts from
discussing the alleged misconduct of the then Chief Justice at an
EGM in June 2000.It is, therefore, necessary that the law be viewed
afresh to strengthen its wholesome aspects and to reform those
parts of it that are an affront to the very concept of justice that
the law is meant to uphold. It must be remembered that justice must
not be a cloistered virtue. She must be allowed to suffer the
scrutiny and respectful, even the outspoken, comments of ordinary
men: Ambard v AG for Trindad and Tobago (1936) AC 322 at 335. See
also Lim Kit Siang v Dr Mahathir [1987] 1 MLJ 49. Definition: Any
challenge to the authority and dignity of the judicial process is a
contempt of court. Any words or acts or publications that are
calculated to bring a judge into disrepute or to lower his/her
authority or to interfere with the due course of justice or the
lawful process of the courts is punishable as a contempt.
Civil contempt: Contempt of court can be of two types. Civil
contempt consists of disobedience to a court order in a civil case
or violation of an undertaking given to the courts. A common ground
for conviction is defiance of an order of injunction. Any one who
abets another to indulge in such disobedience or violation is
equally guilty of contempt.
Criminal contempt: This is a more complex and elastic area. It
refers to the manifold ways in which one can interfere with the
administration of justice.
Thus, abusing or insulting a judge may amount to contempt in the
face of the court. Failure to respond to a court order to appear in
person or to supply documents or evidence; disobedience to a court
order to expunge remarks or information; disrupting court
proceedings; or threatening or bribing witnesses, lawyers or court
officials can all amount to contempt of court. But the re-arrest of
a person who is acquitted or discharged or put free on habeas
corpus is not a contempt of court provided the re-arrest was for a
different offence or under a different law or on separate grounds:
Lee Gee Lam v Timbalan Menteri Hal Ehwal [1993] 3 MLJ 265.
In AG v Pang Cheng Lian [1975] 1 MLJ 69 it was held that
accusing the judge of bias, partiality or of an unwillingness to
listen to the truth amounts to a contempt of court. In AG v Manjeet
Singh Dhillon [1991] 1 MLJ 167 allegations that the Acting Lord
President had tried to interfere with the administration of justice
was regarded as amounting to scandalising the court.
It must be noted, however, that judges and their decisions are
not immune from criticism or challenge. The law journals are
replete with critical analyses of judicial attitudes and reasoning.
The criticism must not, however, be personal or malicious. It must
be in good faith. It must not impute improper motives or racial,
religious, gender or political bias. Above all, the criticism must
be in temperate and balanced language.
Prejudging a case by making gratuitous remarks on the guilt or
innocence of the parties or conducting a trial by media is a
violation of the concept of imminent and pending proceedings.
Tampering with witnesses, documents or evidence or any general
attempt to mislead the court can be caught by the law of
contempt.
The categories of contempt are not closed and cannot be nicely
cut up and dried because the permutations of life are many and one
cannot undermine the ingenuity of wrongdoers who wish to disrupt
the process of justice. For example in an English case Balogh v St
Alban Crown Court [1975] QB 73 - a group of persons tried to inject
laughing gas into the ventilation ducts of the court room in order
to liven up judicial proceedings. They were found guilty of
contempt. On being convicted one of the accused told the judge: you
are a humourless automaton. Why dont you self-destruct.
Perils of journalism: A section of society acutely affected by
the law of contempt of court is media practitioners. In their zeal
to inform and entertain, they often report judicial proceedings
that have gripped the public imagination. But they often transgress
the thin line between factual reporting and commenting on the
merits of the case. Violation of the rule that no pre-judgments
should be made on a case that is imminent or pending has landed
many journalists into trouble. In England some decades ago an
action on behalf of the thalidomide babies was pending in the
courts and an out of court settlement was being negotiated. The
drug company made a paltry settlement offer. The Times commented on
the offer in a damning way, accusing the drug company of not
recognising its responsibility for the tragedy. Though the motive
for the published article was most noble, the newspaper was found
guilty of pre-judging the case and being in contempt of court. AG v
Times Newspapers [1974] AC 273.Journalists have no special right to
withhold their sources of information. If summoned to appear as a
witness, and required to disclose the source of their information,
journalists have no right to refuse even though that would
compromise their undertaking to the person who had supplied them
the information in confidence.
8. JUDICIAL IMMUNITY: In the performance of their judicial
functions all judges are immune from the law of torts and crime.
Just as the public interest in free debate in Parliament justifies
the conferment of absolute privilege for words or acts in the
course of parliamentary proceedings, so too the public interest in
the administration of justice necessitates a similar protection for
judicial proceedings. Every judge of the superior and inferior
courts is entitled to protection from liability for anything said
or done while acting judicially.
Judicial immunity is an aspect of judicial independence. The
purpose of this law is to enable judges, counsel and witnesses to
speak and act fearlessly in the interest of justice and to condemn
inequity in appropriate language without fear of being sued or
prosecuted.
Basis of the law:The Federal Constitution is silent on the issue
of judicial immunity. There is passing reference to immunities in
Article 122AB(1) for Judicial Commissioners but no explicit
protection for other judges. However a number of other laws confer
absolute privilege on judicial proceedings. Under English common
law which is applicable in Malaysia, judges have enjoyed an
immunity since the middle of the 19th century. The Defamation Act
in section 11(1) confers absolute privilege on reports of judicial
proceedings including pleadings, judgments, sentences or findings.
This is so if the reports are fair, accurate and contemporaneous
and the proceedings were publicly heard before a lawful court. All
comments on judicial proceedings are privileged if fair and in good
faith. Under section 6(3) of the Government proceedings Act 1956
there is absolute immunity in torts for all acts performed in a
judicial capacity.
Extent of immunity: In the performance of his judicial functions
a judge is protected from both the civil and criminal process. He
cannot be sued in the civil courts for defamation, false
imprisonment or negligence or prosecuted in the criminal courts for
offences like sedition, breach of the Official Secrets Act or
blasphemy. He is protected as long as he acts under the honest
belief that his conduct was within his powers even though a mistake
of law or fact had led him outside his jurisdiction. In Anderson v
Gorrie [1895] 1 QB 668, it was held that superior court judges, but
not judges of inferior courts, are absolutely immune from liability
however malicious, corrupt or oppressive their words or acts may
be. Fortunately this distinction between superior and inferior
courts is now part of history. In Sirros v Moore [1975] QB 118, the
English Court of Appeal assimilated the position of subordinate
courts to the position of superior courts. In that case the Court
of Appeal held that every judge, including a lower court judge, was
entitled to be protected as long as he acts under the honest belief
that his conduct was within his jurisdiction.
In the the public interest, absolute privilege also attaches to
words used by parties, lawyers, witnesses and jurors. Members of
the jury cannot be punished for their verdict.
Judicial immunity is larger in scope than the protection
afforded by Article 63 of the Constitution to parliamentary
proceedings. In the course of parliamentary discussions and
debates, MPs are exempt from all laws except the law of sedition.
But the law of sedition does not apply to judicial proceedings.
In July 2007, the Court of Appeal dismissed the nations first
suit against a judge. In a case brought by Indah Desa Saujana
Corporation (and others) against Justice James Foong, it was
alleged that the judge, by instructing a senior assistant registrar
under his charge to accept a bankers cheque from Public Bank while
he (the judge) was on vacation in Singapore, amounted to an
interference with the process of justice. The applicants had been
awarded more than RM14 million in a default judgment against the
bank. They demanded that payment should be made to them but the
bank contacted the judge who instructed the senior assistant
registrar to accept the payment in court. The Court of Appeal held
that the act of the judge was in the course of his judicial duties
as head of the civil division and was bona fide. Immunity
applied.Limits on immunity: Judicial immunities relate to function,
not to person. When judges act in their personal capacities, they
are answerable to the ordinary law before the ordinary courts.
Members of the judiciary perform not only adjudicatory but also
many administrative and legislative functions. The Chief Justice,
the President and the Chief Judge, in their capacities as
administrative heads of their courts, perform many non-judicial
functions. Senior judges sit on Rules Committees to draft
procedural rules for the courts. In the performance of such
non-judicial functions, there is no immunity from the law of crime
and torts.
Though judges are shielded from the law of torts in respect of
their words or acts, this is not a licence to be corrupt or
oppressive. The Anti-Corruption Act applies to them just as it
applies to all public officers. Oppressive or improper conduct may
also be a ground for dismissal under Article 125.
The case of Sirros v Moore suggests that immunity is not
absolute and malice defeats immunity. But the issue is by no means
settled. In the English case of Ferguson v Earl [1842] 9 cl. &
F 251, 311 (H.L), it was held that a judge wrongfully declining to
hear a case within his jurisdiction may incur civil liability to
the person aggrieved. Under the Habeas Corpus Act 1679 of England a
judge wrongfully and wilfully refusing to issue the writ is liable
to a penalty of 500 pounds recoverable by the detainee!
Members of those tribunals that resemble courts enjoy only a
partial immunity. Suits may lie against them for malicious acts and
for acts done outside their jurisdiction. In the law of torts, they
enjoy only a qualified privilege which is destroyed by proof of
malice.
Legal practitioners: In the interest of administration of
justice, the immunity of judicial proceedings applies to pleadings,
submissions, documents, questions and answers in the court. But
Indian courts have held that a counsel must perform his duty with
discretion. If he makes irrelevant, wanton, wild, reckless and
malicious allegations, the privilege may be withdrawn. Lawyers are
also liable to punishment if their conduct is regarded as a
contempt of court: AG v Manjeet Singh Dhillon [1991] 1 MLJ 167; AG
v Arthur Lee Meng Kuang [1987] 1 MLJ 206.SOME ISSUES AND
DILEMMAS
1. JURISDICTIONAL ISSUES BETWEEN CIVIL AND SYARIAH COURTS: The
cardinal principle of constitutional supremacy seems to have become
subject to at least one exception. On 10 June 1988 the Constitution
(Amendment) Act 1988 (Act A704) inserted a new clause (1A) to
Article 121 to provide that (the High Courts) shall have no
jurisdiction in respect of any matter within the jurisdiction of
the Syariah courts. Article 121(1A) was meant to create a
separation between the Syariah and the civil courts; to give
independence to the Syariah courts in matters within their
jurisdiction; and to forbid the civil courts from engaging in
interpretation of those issues of Syariah law that are assigned to
state jurisdiction. The judicial practice has evolved differently.
In a long line of cases, civil courts have started interpreting
their powers narrowly. In case after case the civil courts have
declined jurisdiction even though questions of constitutionality
were often at stake, even though there were complaints of
fundamental rights violations or allegations that the federal-state
division of powers was transgressed. In some cases one party was a
Muslim, the other a non-Muslim but the civil courts refused
jurisdiction and the parties were advised to turn to the Syariah
courts, notwithstanding the clear constitutional rule in Schedule 9
List II Paragraph 1 that Syariah courts shall have jurisdiction
only over Muslims. The view of some civil courts seems to be that
as long as there is any element of Syariah law or jurisprudence
involved, the matter must be referred to the religious courts.
In turn, State Assemblies and Syariah courts have begun to view
their powers expansively. They have begun to exercise jurisdiction
on all matters relating to Islam even if those matters are not,
under the Constitution, within their jurisdiction as defined in
Schedule 9 List II, Paragraph 1. It is submitted that in the
constitutional scheme of things, issues of constitutionality, of
jurisdiction, of fundamental rights and of the federal-state
division of powers are in the hands of the federal courts.
Inspiration for this proposition can be derived from a number of
cases: Sukma Darmawan Sasmitaat Madja [1999] 1 CLJ 497, Dato Kadar
Shah Tun Sulaiman v Datin Fauziah Haron [2008] 4 CLJ 504, Latifah
Mat Zain v Rosmawati bte Sharibun [2007] 5 MLJ 101 and Siti Hasnah
Vangarama Binti Abdullah v Tun Dr Mahathir Mohamad (and others) (30
July 2012). In the latter case a seven year old girl, who was born
to Hindu parents and given the Hindu name of Banggarma a/p
Subramaniam was put through the process of conversion to Islam. Now
an adult she argued that she was never a Muslim but had been in an
unconstitutional and unlawful manner and without parental consent
converted to Islam. The Penang High Court held that the Syariah
High Court of Penang had exclusive jurisdiction to adjudicate on
the contestations. The Court of Appeal in a courageous and learned
judgment penned by JCA Dato Mohd Hishamudin Yunus ruled that it is
not the law that a subject-matter automatically ceases to be within
the jurisdiction of the civil courts just because it has an Islamic
law element in it. Only if the subject-matter is exclusively within
the jurisdiction of the Syariah Courts would the subject-matter, by
virtue of Article 121(1A), fall outside the jurisdiction of the
civil courts. The determination and the enforcement of fundamental
rights are matters that are outside the jurisdiction of Syariah
Courts. As the case involved provisions of Article 11(1) and
Article 12(4) and the Guardianship of Infants Act 1961, the civil
courts must accept jurisdiction. 2. AMENDMENT OF ARTICLE 121(1):
The issue of the courts inherent power of judicial review has
become quite clouded after the amendment to Article 121(1) in 1988.
This amendment deleted the words that Subject to Clause (2) the
judicial power of the Federation shall be vested in two High Courts
The re-drafted Article 121(1) states that there shall be two High
Courts and they shall have such jurisdiction and powers as may be
conferred by or under federal law. Some judges are of the view that
this amendment does not destroy the doctrine of separation of
powers; it does not emasculate the judiciary; it does not
extinguish the courts inherent power to review executive and
legislative actions. In support of this view one can point to a
large number of cases from the Commonwealth. One can refer to the
fact that the 1988 amendment did not delete the head note to
Article 121 which still reads Judicial power of the Federation.
There is also the fact that despite the 1988 amendment, a large
number of statutes like the Courts of Judicature Act 1964, Specific
Relief Act 1950, Criminal Procedure Code FMS Cap 6 and the
Government Proceedings Act 1956 continue to vest the superior
courts with supervisory powers to issue habeas corpus, certiorari,
prohibition, mandamus, injunction, declaration, quo warranto and
other remedies.
Other judges have, however, adopted a literal view of Article
121(1). In Pendakwa Raya v Kok Wah Kuan (2007), Abdul Hamid
Mohamad, PCA, speaking on behalf of four out of five judges held
that After the amendment, there is no longer a specific provision
declaring that the judicial power of the Federation shall be vested
in the two High Courts If we want to know the jurisdiction and
powers of the two High Courts we will have to look at the federal
lawnot on the interpretation of the term judicial power as prior to
the amendment and not what some political thinkers think judicial
power is.
3. APPOINTMENT & PROMOTION: If need be, the law should be
amended to expand the circle of legally trained persons who are
eligible to be elevated to the Bench. Given the problem of quality
at the Bench, it appears unwise to bar distinguished academicians
and legal officers in public corporations and statutory bodies from
being considered for appointment as Judicial Commissioners or
Associate Justices to handle specialized cases. A more diversified
judiciary should be created. At present the majority of appointees
tend to be from the Judicial and Legal Service and not from the
Bar. This imbalance must be corrected. The extensive consultative
procedures prior to appointment do not apply to the appointment of
temporary or part-time Judicial Commissioners. Under Article 122AB,
they are appointed for a specified period or a specified purpose by
the King on the advice of the Prime Minister after consulting the
Chief Justice. Does the Judicial Appointments Commission Act apply
to these appointments? Regrettably direct appointments to the High
Court have become rare and a stint as a Judicial Commissioner is
regarded as a probationary period for a full appointment
afterwards. This practice undermines the rules in Article 125 about
security of tenure.
For purposes of promotion, a Performance Evaluation Programme
could be implemented to enable government and private lawyers to
evaluate holders of judicial office on the indices of integrity;
knowledge and understanding of the law; ability to communicate;
preparation, attentiveness and control over proceedings; skills as
a manager of pending matters; and punctuality. 4. INSULATION FROM
POLITICS: Much as judges abhor partisanship, some judicial
functions gallop around the outskirts of economic and political
ideology. For example, the judicial power in Articles 4(1) and
128(1) to determine the constitutionality of laws and executive
actions requires judges to adjudicate on issues on which political
passions may run high. In the USA when President Roosevelt's New
Deal legislation was struck down by the Supreme Court, the charge
was hurled that the Supreme Court was wedded to a laissez faire
ideology of a bygone era.
Judicial determination of disputes between the federal
government and the states and between one state and another often
drags the courts into politically charged issues. Witness for
example the decision in Mamat Daud v Government [1988] 1 MLJ 119
that section 298A of the Penal Code was not a law on public order
(within the powers of the federal government) but a law on Islam
(within the exclusive competence of the states). Disputes between
the federation and the states about oil royalty, local government
elections, appointment of State Secretary, management of water
resources, building of dams and the recently installed electronic
monitoring system on the roads invariably raise political
temperatures.
Many issues are tinged with partisan politics among them
declaration and revocation of emergency and appointment or
dismissal of Prime Minister/Chief Minister.5. LAW OF CONTEMPT OF
COURT: The need to preserve the dignity and independence of the
judiciary needs to be reconciled with the equally important need to
enable litigants and lawyers to espouse their causes without undue
fear of being punished for their advocacy. Because Malaysia has
opted for a written Constitution with a chapter on fundamental
rights instead of an unwritten Constitution as in the UK, it makes
more sense to follow American and Indian precedents than English
practices in this field. The wholesale acceptance of the English
law of contempt without due regard to the imperatives of personal
liberty and free speech enshrined in the Constitutions Articles 5
and 10 respectively, has not served us well. We need a codified law
of contempt of court on the lines of the Bar Councils initiative in
1999.The new law must address a number of critical issues foremost
among them are the following:
Are there any circumstances in which a judge can be cited for
contempt of court? What if a Chief Justice telephones and
pressurizes one of his judges to decide a case in a particular way?
What if an Acting Lord President calls up the court registry and
orders the officers to close the doors so that no applicant can
file an urgent case against a Tribunal in which the Acting Lord
President is taking part? What if a judge has a private meeting
with one of the parties to a litigation behind the back of the
other? What, if for corrupt reasons, a judge conspires to dispose
of a case in a particular way? The criminal law against corruption
undoubtedly applies. The question needs to be posed whether the law
of contempt of court should also apply? Scandalising the courts is
a clear case of contempt. But must this law also extend to
allegations unfounded though they may be against the
Attorney-General and public prosecutors?
An adequate procedure should be put in place to allow lawyers to
submit written applications requesting that a judge should be
disqualified from presiding over a case on grounds of bias or
pre-judgment.
Summary punishment for contempt in the face of the court is a
violation of the rule against bias as well as of the rule of
hearing. An unfettered power to act as accuser, prosecutor and
judge must cause uneasiness in any system of civilised
jurisprudence.
With jury trials now a matter of history, the concept of
imminent and pending proceedings may need to be relaxed. Most
judges are sufficiently well equipped by their professional
training to be on their guard against allowing outside comments to
influence them.
Some safeguards must be incorporated into the law to protect a
journalists source of information except on clearly defined grounds
of overriding national interest.
Truth, fair comment and public interest must be recognised as
defences against a charge of contempt. In the law today, innocent
dissemination is not a defence. Neither is lack of criminal intent.
The tendency of an act is sufficient. In Murray Hiebert v Chandra
Sri Ram [1999] the court held that in cases of contempt, the
relevant test is not real risk of prejudice to the administration
of justice but whether the offending statements are likely or tend
in any way to interfere with the proper administration of justice.
There is no reason why such an unhelpful test, long disregarded in
the UK must still haunt our jurisprudence.
In sum, the law must seek to achieve a better balance between
the rights of litigants and the power of the courts.
6. JUDICIAL IMMUNITY: All immunities, whether partial or total,
are a departure from the cherished ideal of equality before the law
enshrined in Article 8 of the Federal Constitution. For this reason
all immunities must be kept as narrow as possible and must always
be subjected to rational and critical appraisal.
If immunity is abused to speak untruthfully, negligently or
maliciously; if a lawyer or judge makes gratuitous defamatory
remarks for reasons of personal rancour; if counsel uses remote and
trivial arguments to try to disqualify the presiding judge; if
during cross examination counsel berates, badgers and browbeats a
witness into submission or hurls insults and unfounded allegations
at him, then one has to ask whether the existing rules of immunity
should be modified to prevent such abuse.
Around the world, the law is moving away from feudal notions of
immunity and is calling for more and more accountability. It is in
keeping with the times to suggest that the presence of malice
should defeat immunity.7. FUSED JUDICIAL & LEGAL SERVICE: A
fused judicial and legal service creates the perception of lack of
independence. A separation is desirable. 8. PARLIAMENTARY
PRIVILEGES: To what extent courts can review the exercise of the
privilege jurisdiction of the Houses of Parliament/State Assemblies
remains a complex issue of law and politics.
9. NON-JUSTICIABLE POWERS: Many powers of the executive and the
legislature are non-justiciable. These pose problems for the theory
of an independent judiciary.
10. EMPANELLING OF COURTS: Questions have arisen about the
unrestrained power of chief judges to empanel their courts. A chief
judge with the power to pick and choose who should hear a
particular case can exert a powerful influence on the outcome. An
extreme illustration of this situation is when the Chief Justice of
the Federal Court unconstitutionally invited a judge of the High
Court to sit with him on the Federal Court: Dato v Kanalingam v
David Samuels [2006] 6 MLJ 521.
11. ROYAL COMMISSIONS: Appointment of sitting judges to Royal
Commissions boosts the legitimacy of the Commission but raises
issues about the propriety of superior court judges accepting such
appointments, especially if extra income is involved. In sum,
though the Malaysian law on independence of the judiciary is
detailed and has many wholesome features, there remain some issues
on which eternal vigilance is needed. A masterly discussion of
these remedies in the Malaysian context is found in M P Jain,
Administrative Law of Malaysia And Singapore, 2nd edition, Chapters
XIV to XV
For a distinction between appeal and review see M P Jain, supra,
pp. 435-439
For a discussion of the engaging issue of exclusionary, ouster
and privative clauses see M P Jain, supra, pp. 536-553
In the Likas election case, the Election Judge complained that
he had been instructed on the phone by the Chief Justice of the
Federal Court to dismiss the application summarily. The learned and
courageous judge defied the instruction and went on to censure the
conduct of the Election Commission : Haris Mohd Salleh v Ismail
Majin [2000] 3 MLJ 434.
The learned judge in Meor Atiqulrahman Ishak v Fatimah Sihi
[2005] 5 MLJ 375 ruled that there was no constitutional right to
wear a serban to school despite the practice of the Holy Prophet of
wearing a serban. A police report was filed against him. No action
in contempt of court was taken against the complainant.
In late 2007, a video clip emerged showing a prominent lawyer in
conversation with a Datuk about an elaborate scheme to broker
judicial appointments and promotions with the help of a business
tycoon and several ruling party politicians: The Star, 22 September
2007, N4.
Increased to eleven by PU(A)114/82
Increased to 22 by the Constitution of the Court of Appeal Order
2006, PU(A) 385, 4 Oct. 2006.
Increased to 60 by the Constitution of the High Courts (Judges)
Order 2006, PU (A) 384, 4 Oct. 2006.
Increased to 13 by the Constitution of the High Courts (Judges)
Order 2006, PU (A) 284, 4 Oct. 2006.
Refer to Articles 122(1), 122A(1) and 122AA(1)
The Star, 29 August 2007, N17.
It is rumoured that in 2007, the Conference of Rulers rejected
the Prime Ministers recommendation for the vacant post of the Chief
Judge of Malaya. The post remained vacant from January 2007 to
August 2007. See The Star, 11 August 2007, pages 1 & 3.
During the tragic episode, it came to light that the Yang
di-Pertuan Agong was angered by the Lord Presidents letter to him
and had asked that Tun Salleh be sacked.
Refer to the Judges Remuneration Act 1971 (Act 45)
However, the rule against double jeopardy under Article 7(2) may
apply.
Some issues of Syariah law like Islamic banking, hajj, contracts
as well as all crimes covered by federal law are within the
jurisdiction of the civil courts.
In Latifah Mat Zain v Rosmawati bte Sharibun [2007] 5 MLJ 101,
Abdul Hamid FCJ, in a learned judgement, listed 47 cases in which
jurisdictional issues between syariah and civil courts were
raised.
Refer to Ngan Tuck v Ngan Yin Hoi [1999] 5 MLJ 509; R Rama
Chandran v The Industrial Court [1997] 1 MLJ 145; Sugumar
Balakrishnan v Pengarah Imigresen [1998] 3 MLJ 289. Refer
especially to the admirable Court of Appeal judgment in Kok Wah
Kuan v PP [2007] 5 MLJ 174. The Court of Appeal asserted that the
power of sentencing is a judicial power that must belong to the
courts and must not, by legislation, be vested in the executive.
Section 97(2) of the Child Act 2001 purported to vest the
sentencing power in the hands of the King and was, therefore,
unconstitutional. Regrettably, on October 23rd 2007 the Federal
Court overruled the Court of Appeal. But one judge, Richard
Malanjum CJ (S&S) dissented powerfully on the impact of Article
121(1). According to Richard Malanjum CJ (S&S) the judicial
role under the Constitution is far larger than slavish obedience to
federal law. Article 121(1) does not convert judges into robots
obliged to do whatever federal law directs. Judges have wider
constitutional duties which no federal law can take away from
them.
DPP v Mollison [2003] UKPC 6; Hinds v The Queen [ 1976] 1 AllER
353; Liyange v The Queen [1967] 1 AC 259; Special Courts Bill 1978,
In re the AIR [1979] SC 478
Richard Malanjum, CJ (S&S) delivered a powerful, separate
opinion on the impact of Article 121(1) and how the amendment does
not and cannot emasculate the courts.
For the learned views of Ranita Hussein, a former JC and SUHAKAM
Commissioner, on this matter, see The New Straits Times, April 7,
2007, p. 23.
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