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Putik Lada by Angeline Cheah

The establishment of an independent commission for the appointment and promotion of judges is a very important step to ensuring the independence of the judiciary without interference from the executive or legislative branches.

THERE seems to be yet another minor explosion on the issue of our country’s judiciary with the shocking, and yet not that shocking, revelation recently by Justice Datuk Ian Chin of events that happened more than 10 years ago.

It has been said that the pillar of a country’s democracy is the independence of the judiciary. But what exactly constitutes judicial independence?

As law students, we are familiar with the three-prong elements of the doctrine of separation of powers i.e. executive, legislature and judiciary. In its ideal state, these three elements should be independent of one another and none should overlap.

Wikipedia defines judicial independence thus: “Judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests.”

The UN High Commission for Human Rights on the basic principles of judicial independence states under Principle 6 that “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”

Having said all that, can we really say in Malaysia, being a democratic country, that we truly observe the principles of an independent judiciary?

No doubt, the Lingam video clip issue has certainly cast a damper on that ideal. The very fact that a lawyer could be seen to be brokering the appointment of judges was certainly a shame on the state of our country’s judiciary.

Of course, lawyers were then made the butt of many jokes, typically the ones that go “correct, correct, correct”.

Not to be despaired, we lawyers then took to the streets, in what will go down in history as the “Walk for Justice”.

Hundreds of lawyers braved the rain and the authorities as they walked to hand over a memorandum to the Prime Minister on the state of our judiciary.

With the exposure of this controversial video, slowly but surely the dirt was swept out from under the carpet, and this recent revelation by Justice Chin, I believe is just the tip of the iceberg.

Of course all this stems back to the 1988 judicial crisis in our country with the sacking of some of the top judges, including the Lord President. Now, 20 years later, some of them have since received ex-gratia goodwill payments as promised by the government.

However, monetary compensation can never replace the good name that has been tarnished and the image of our country’s judiciary that has been tainted by these events.

With all these revelations, what is our role as the Bar, especially being younger members of the Bar?

It was reported in a local newspaper lately that civil servants have been urged to help the government rebuild and restore public confidence in the judiciary. How can that happen?

This can only happen if we were to bring back judicial powers to the courts. As members of the Bar, we are directly affected by what goes on in the judiciary.

This is the very reason why we need to push for the establishment of an independent commission for the appointment and promotion of judges. This is a very important step to ensure the independence of the judiciary without interference from the executive or legislative branches.

This, however, sounds easier than it is to execute. Let me quote from the official website of the Judicial Appointments Commission (JAC) of the United Kingdom.

The website states “The JAC is an independent Non Departmental Public Body (NDPB) set up by the Constitutional Reform Act in 2005 to select judicial office holders?As a NDPB we are sponsored by the Ministry of Justice.”

From this we can see that even though “independent”, the Commission was set up by the Constitutional Reform Act (Legislative) and sponsored by the Ministry of Justice (Executive). With these overlaps, how then can we say that the commission is truly independent?

If a commission such as the JAC is set up in Malaysia, I am afraid the same problem may occur. The doctrine of the separation of powers in theory is a good idea, but is almost impossible to execute.

If that is the case, we need to guard most importantly against corruption in all three branches. Even though they may be allowed to overlap, it should be done in a clean and transparent manner.

I believe this quote by Thomas Jefferson sums it up it a nutshell: “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them... But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”

Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.

For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc

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