The Malaysian Bar's International Malaysia Law Conference ("IMLC") 2018 is taking place from 14 to 17 Aug 2018 at The Royale Chulan Kuala Lumpur.
Thirtieth Anniversary of the 1988 Judicial Crisis: Lessons about the Importance of Judicial Independence and Impartiality
Thank you Mr President George
Varughese, My Lords, Honourable Ministers, distinguished guests, and
fellow members of the legal community.
We are all here to honour the memory of Raja Aziz Addruse who illuminated the Malaysian legal profession with a warm glow for many decades. His steadfast morality, reasoned voice, and courageous leadership steered the Bar through many turbulent times in the 70s and beyond. His legacy lives on and is evidenced in the many principled positions that the Malaysian Bar continues to adopt on issues of rule of law, democracy and human rights. I wish to say this at the very outset that in the last nine years while institution after institution, including some elements in the judiciary, was successfully coopted by the executive to do its bidding, the Malaysian Bar along with a few other NGOs, continued to provide dykes against the tide of authoritarianism. For that, Mr President, the entire citizenry owes the Bar Councils of Malaya and of Sabah and Sarawak our deepest gratitude.
The judiciary occupies a central place in Malaysia’s constitutional set–up. The Constitution envisages a rich variety of functions for the courts to preserve the rule of law and constitutionalism in the country.
• Judges are under oath to preserve, protect and defend the Constitution. It is their duty to enforce the supremacy of the Constitution against all pre–independence and post–independence legislation.
• It is their inherent power to employ the “first principles of administrative law” to keep the government in check.
• They are to supply the balance wheel of federalism.
• It is their duty to safeguard human rights by balancing the might of the state with the rights of the citizens.
• It is their function to interpret the Constitution to harmonize conflicting provisions, to make explicit what is implicit in the law and to fill the gaps found in legislation.
• They provide remedies whenever rights are infringed.
• The courts supply a dispute–resolving mechanism between the citizen and the state and citizen and citizen.
• In the field of criminal law, they legitimize the application of sanctions against transgressors of the law.
We are all here to honour the memory of Raja Aziz Addruse who illuminated the Malaysian legal profession with a warm glow for many decades. His steadfast morality, reasoned voice, and courageous leadership steered the Bar through many turbulent times in the 70s and beyond. His legacy lives on and is evidenced in the many principled positions that the Malaysian Bar continues to adopt on issues of rule of law, democracy and human rights. I wish to say this at the very outset that in the last nine years while institution after institution, including some elements in the judiciary, was successfully coopted by the executive to do its bidding, the Malaysian Bar along with a few other NGOs, continued to provide dykes against the tide of authoritarianism. For that, Mr President, the entire citizenry owes the Bar Councils of Malaya and of Sabah and Sarawak our deepest gratitude.
ROLE
OF THE JUDICIARY
The judiciary occupies a central place in Malaysia’s constitutional set–up. The Constitution envisages a rich variety of functions for the courts to preserve the rule of law and constitutionalism in the country.
• Judges are under oath to preserve, protect and defend the Constitution. It is their duty to enforce the supremacy of the Constitution against all pre–independence and post–independence legislation.
• It is their inherent power to employ the “first principles of administrative law” to keep the government in check.
• They are to supply the balance wheel of federalism.
• It is their duty to safeguard human rights by balancing the might of the state with the rights of the citizens.
• It is their function to interpret the Constitution to harmonize conflicting provisions, to make explicit what is implicit in the law and to fill the gaps found in legislation.
• They provide remedies whenever rights are infringed.
• The courts supply a dispute–resolving mechanism between the citizen and the state and citizen and citizen.
• In the field of criminal law, they legitimize the application of sanctions against transgressors of the law.
IMPORTANCE
OF JUDICIAL INDEPENDENCE
Thirty years ago, the Malaysian judiciary suffered a series of catastrophic events. The Lord President and five other Supreme Court judges were suspended. Ultimately, three were dismissed and three reinstated. The Chairman of the Tribunal that recommended the dismissal of Tun Salleh, was rewarded with the post of Lord President. The Bar Council refused to recognize the new head of the judiciary who, nevertheless, worked with the executive to pack the superior courts with new appointees loyal to him. Many good men on the Bench were either transferred out of KL or mothballed. A number of disgraceful and Ajaib decisions like the one in the Aliran case with extreme bias towards the executive filled the law reports. Around the same time, the Federal Constitution was amended in Article 121(1) to divest the courts of the "judicial power of the Federation", granting them instead such judicial powers as Parliament might grant them.
A judicial winter descended on the country.
I have been asked in this talk to assess where we stand today on the issue of judicial independence and impartiality thirty years later.
Let me say quickly that the winter has not yet thawed. However, now and then, there are warm rays of light that give hope that summer is nigh. A mature and fair assessment is not really possible because over the last thirty years, thousands of judicial decisions – some very admirable, some very forgettable, have been delivered. I cannot in any objective way assess the work of 160 or so judges and JCs over the last 30 years. I can only make sweeping generalizations about the highs and the lows of judicial conduct and recount a number of memorable or miserable constitutional developments.
The judiciary is an essential component, though not the only one, of a system of checks and balances. It is a safety valve without which no democracy can flourish. For these reasons judicial independence must be safeguarded, integrity and ability must be rewarded and respect for judicial decisions must be maintained. The judicial branch must be separate from and independent of the other branches of the state. Judges must be men and women of integrity, impartiality and legal wisdom. Besides a deep and holistic knowledge of the law they should have a sense of justice. They must have the moral courage to stand between the citizen and the state and to administer justice without fear of the other branches of the state or of public opinion.
Before I say more, let me submit that freedom to do justice according to the law is not simply a matter of constitutional safeguards. A host of other factors – within the judiciary and outside the judiciary, within the law and within politics, economics, religion and psychology – impinge on the performance of a judge.
For example, a judge’s impartiality, emotional maturity and objectivity, are personal attributes that no Constitution can guarantee. No law can ensure that a judicial appointee will soar above the timberline of the trivial and transcend the prides, prejudices and temptations that afflict ordinary mortals.
SAFEGUARDS
IN THE FEDERAL CONSTITUTION
The Federal Constitution and laws contain a number of sterling safeguards for preserving judicial independence.
1. Institutional Separation of Superior Courts
The Merdeka Constitution of 1957 sought diligently to secure institutional separation between the superior courts and the other organs of the state. The superior courts are structurally separate from and functionally independent of the executive and the legislature. The existence of the judiciary, the judicial hierarchy, the jurisdiction and composition of the courts and provisions for discipline within the judiciary are prescribed by law and not open to tampering by the executive.
However, there are several contradictory provisions within the Constitution that will be mentioned later.
2. Proper Qualifications
Article 123 prescribes the rules of eligibility for appointment to the superior courts. Members of the Judicial and Legal Service and of the Bar with 10 years’ standing are eligible to be elevated to the Bench.
3. A Consultative Appointment Process
An elaborate and multi–tiered process of consultation amongst the PM, senior–most judges, the Judicial Appointments Commission, the Yang di–Pertuan Agong and the Conference of Rulers precedes every judicial appointment (Article 122B). A wholesome improvement in this area was the creation of the Judicial Appointments Commission (JAC) which makes non–binding recommendations to the PM. Regrettably, the PM often rejects the JAC’s recommendations.
4. Security of Tenure
Superior court judges have security of tenure and cannot be dismissed except on the recommendation of a tribunal of not less than five sitting or retired, local or Commonwealth judges (Article 125). Judges cannot be removed by Parliament, the PM or the King. Regrettably this constitutional safeguard failed tragically in the Tun Salleh episode of 1998 and the judicial winter that descended has not yet fully thawed.
5. Terms of Service
Judicial salaries and terms of service are more favourable than those of civil servants. Under Article 125(7) these terms can be improved but cannot be changed to the detriment of judges.
6. Transfer
Under Article 122C the King can transfer a High Court judge to another High Court but only on the advice of the Chief Justice. However, there are no safeguards if the CJ recommends the transfer of a judge for extraneous considerations.
7. Insulation from Politics
Many rules and practices protect the judiciary against political vitriol. 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. Cases that are sub–judice are not allowed to be discussed in Parliament. Under Article 125(6) the remuneration of judges is charged on the Consolidated Fund thereby excluding it from the budget debate.
8. Power to Punish for Contempt
Article 126 of the Constitution confers on the courts the power to punish for contempt. Nobody, including the PM, the AG, the IGP, a Syariah official or a civil servant is exempt from this power. Lately, however, many cases of defiance of judicial decisions by Syariah authorities, the police, the National Registration Department have gone unpunished.
9. Immunity
In the performance of their functions all judges are immune from the law of torts and crime for their official work.
10. Promotion
In some countries like Pakistan the promotion process is insulated against politics and the appointing authority cannot disregard seniority. Regrettably our Article 122B offers no such protection. In the matter of promotion, there are regrettably no guiding principles. Seniority and legal acumen do not count. The discretion of the Chief Justice and the Prime Minister is paramount. In 2007 it came to light that a judge had not written judgments in 35 cases and yet was elevated to the Court of Appeal and later to the Federal Court. We also know that in the matter of two distinguished and independent–minded judges – Justice Abdul Malek Ahmad and Justice Mohd Hishamudin Yunus, the PM vetoed their promotions. It is only once in a while that the Conference of Rulers is able to block an improper appointment or promotion of a malleable judge.
A few weeks ago when the senior most Federal Court judge, who was also admired internationally for some of his dissenting judgments, was promoted to Chief Justice by the new Pakatan Government, some racial and religious bigots, in disregard of the Constitution, raised questions about the suitability of a non–Muslim to hold the top judicial post.
11. The Court of Judicature Act
Under the Court of Judicature Act, our courts are open courts. There is a system of appeal. Legal representation is allowed. However, legal aid is in its infancy. There is a mature system of law reporting and the country is blessed by a vigorous Bar that refuses to be cowed down by many threats.
SOME
UNSATISFACTORY ASPECTS
Despite the above safeguards, the Constitution and the legal system are replete with some unsatisfactory features.
1. JCs and Additional Judges
Due to constitutional amendments, the King was empowered to increase the number of superior court judges[1], to appoint non–tenured Judicial Commissioners to the High Court (Article 122AB) and Additional Judges to the Federal Court (Article 122(1A). Additional Judges are appointed “for such purposes or for such period” as the King may specify. In 2017 this provision was abused to fill vacancies in the post of Chief Justice and President of the Court of Appeal so that the two top judges of the country were entirely at the mercy of the executive in relation to their tenure.
2. Judicial Power
Article 121(1), prior to its amendment in 1988, conferred the judicial power of the Federation on the Courts. After the government’s defeat in the Dato’ Yap Peng case, Article 121(1) was amended to take away the judicial power from the courts and to provide that judges shall have only such power as is conferred by federal law. The intention was to deprive the judges of any inherent or prerogative powers to keep the government in check. Another controversial intention of this amendment was to reject the Yap Peng notion that judicial power is exclusive to the judiciary.
Some judges like the Federal Court majority in Kok Wah Kuan (2008) timidly jumped on to the bandwagon of the truncated Article 121(1). Others courageously resisted. Notable in this latter category are the celebrated minority opinion of Justice Richard Malanjum in Kok Wah Kuan and the groundbreaking Semenyih Jaya decision of Justice Zainun Ali.
3. Syariah Courts
By a constitutional amendment, Article 121(1A) was inserted into the Constitution to immunize Syariah courts, acting within their jurisdiction, from interference by the civil courts. However, the amendment did not clarify as to who is to have power to determine conflict of law situations or issues of constitutionality or human rights. For about 29 years since 1988, many superior court judges ruled that the Syariah courts were on par with civil courts. The immunity from judicial review was extended even to non–judicial Syariah officials. This is despite the fact that the Syariah courts’ 3–6–5 jurisdiction to impose criminal penalties is equivalent to that of Second Class Magistrates. It is only this year that the courageous Indira Gandhi (2018) decision ruled that in our constitutional scheme of things, the superior courts maintain the power of review on issues of constitutionality and ultra vires over all tribunals that do not enjoy the safeguards conferred by Part IX of the Constitution.
4. Subordinate Courts
To the ordinary citizen, the quality of justice is what happens in the subordinate courts. Regrettably, most of the safeguards for judicial independence are unavailable to the hundreds of judges of our Sessions and Magistrates Courts. This should be a cause of concern because 90 per cent of criminal and 50 per cent of civil cases are adjudicated in lower courts. It came to light recently that Members of the Judicial and Legal Service are compelled to attend courses at Biro Tatanegara – the ruling party’s centre for ideological training.
Article 138 provides for a fused judicial and legal service under a Judicial and Legal Service Commission (JLSC). From the point of view of the independence of the judiciary, there are many objectionable features of the JLSC set–up:
• The Chairman of the JLSC is a top civil servant who is also the Chairman of the Public Services Commission (PSC). Prior to 1960, the Chief Justice was the Chairman of the JLSC. We need to restore the earlier wholesome law.
• The composition of the JLSC consists of the Chairman of the Public Services Commission, the Attorney–General (or if the AG is disqualified under Article 138(2)(b), then the Solicitor General) and one or more judges appointed by the King.
• The presence of the AG on the JLSC is problematic because under Article 145 the AG is the government’s chief legal advisor, lawyer and public prosecutor. He may appear before a judge of the Sessions or Magistrates Court one day and sit on the JLSC the next day to consider the promotion, transfer or discipline of that judicial officer.
• From the point of view of judicial independence, freedom from fear and institutional bias, the position of judicial officers in this country is quite untenable. A judicial officer may be transferable from the judicial service to the legal service and vice versa. His transfer, promotion and discipline are in the hands of a Commission chaired by the PSC head with the AG in attendance. The latter has administrative control over all legal officers. This was demonstrated in the case of Maleb Su v PP (1984) where the lower court judge frankly expressed his fears of the AG. In the end the High Court dismissed, though not so convincingly, the concerns of the President and the Magistrate.
• JPA Circular 6/2010 puts all Pegawai Undang–Undang under the administrative control of the Attorney–General. With all due respect even if the Circular reproduces the existentialist reality of the AG’s omnipotence, its constitutionality is in doubt. Under Article 138, the JLSC’s “jurisdiction shall extend to all members of the judicial and legal service”. No Pekeliling Perkhidmatan can override the Constitution. In Maleb Su v PP it was held that the AG is not the head of the service nor can he be by virtue of Article 138.
• We have learnt recently that along with other civil servants, subordinate court judges are being required to attend Biro Tatanegara courses which have been widely criticized for their inflammatory political, racial and religious content.
• Article 138 needs to be amended to separate the Judicial from the Legal Service. This will require a constitutional amendment with a two–third bipartisan majority – something that should not be difficult to obtain given the non–political nature of this proposal. The Legal Service should be under the Attorney–General. The Judicial Service should be under the Chief Justice as before 1960. Alternatively, ex–Chief Justice Tun Ariffin’s suggestion may be worthy of consideration that the Chief Registrar of the Federal Court should head the Judicial Service. To avoid institutional bias and fear of victimization, officers in the two services should not be transferable, except on a permanent basis, from one service to the other. Appointments to the Judicial Service could be made subject to the recommendation of the already existing Judicial Appointments Commission under Act 695 of 2009. This will, of course, require amendments to the Constitution as well as to Act 695. What is important is that justice should not only be done but must be seen to be done.
5. No Substantive
Due Process
In several decisions the courts have held that the reasonableness or fairness of laws is not for the courts to determine. Law is lex not jus or recht. This judicial approach, supported by many positivists, is clearly in conflict with a line of cases under the equality clause of Article 8 that legislative classification must be reasonable and must have a rational nexus with the object sought to be achieved.
6. Articles 149 and 150
These Articles confer extraordinary powers on the legislature and the executive in times of subversion and emergency and judicial review is almost impossible to obtain. Article 150(8) ousts judicial review on matters of emergency. This provision is alarming because Malaysia was under a continuous state of emergency from 1964 to 2011.
7. Ouster Clauses
The Constitution is replete with ouster clauses in such areas as citizenship and emergency powers.
8. Code of Ethics
Articles 125(3A), (3B) & (3C) were inserted in the post Tun Salleh era to provide for discipline of judges who breach the code of ethics. The formulation of the code is by the executive and its use is in the hands of the Chief Justice.
9. Stare Decisis
This venerable doctrine of the common law stands in the way of many brilliant judges in the High Court and Court of Appeal who are forced to follow poor decisions by the Federal Court. In many cases scintillating landmark decisions at the High Court or Court of Appeal are overturned by a conservative Federal Court.
10. Pressures from Within
In the Likas by–election case of Haris Mohd Salleh v Ismail Majin (2000) we learnt that a judge’s freedom of action can be threatened by pressures from his judicial superiors. It is not unknown that some Chief Justices try to influence their juniors to reach particular outcomes and to show regard for bigger considerations.
11. Influence–peddling Lawyers
We learnt after a Royal Commission Report that judicial integrity can be compromised by influence–peddling lawyers. Despite the Royal Commission Report, no lawyer or judge was prosecuted.
12. Chief Justice’s Power to Empanel
An area discussed only hush–hush, is the unlimited power of the Chief Justice to empanel a hand–picked Bench that may be seen as ideologically inclined towards one side. In one case the CJ went to the extent of unconstitutionally asking a High Court judge to sit with him on the Federal Court.
An observer cannot fail to note that in many inter–racial or inter–religious disputes, the Bench that was constituted had no representation from the religious or racial minorities. In some cases involving Sabah and Sarawak, no effort was made to have an East Malaysian judge on the panel. The new CJ has fortunately addressed this issue and we have to wait and see.
13. Untrammeled Powers of the Attorney General
Under Article 145(3) the Attorney General “shall have the power, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for an offence….”. Nowhere does the Constitution say that the power of the AG shall be exclusive. Yet, many judges have given to the Attorney General an absolute monopoly over criminal prosecutions. The 1MDB debacle clearly illustrates the danger of trusting the Attorney General with unfettered discretion over prosecutions.
In several decisions the courts have held that the reasonableness or fairness of laws is not for the courts to determine. Law is lex not jus or recht. This judicial approach, supported by many positivists, is clearly in conflict with a line of cases under the equality clause of Article 8 that legislative classification must be reasonable and must have a rational nexus with the object sought to be achieved.
6. Articles 149 and 150
These Articles confer extraordinary powers on the legislature and the executive in times of subversion and emergency and judicial review is almost impossible to obtain. Article 150(8) ousts judicial review on matters of emergency. This provision is alarming because Malaysia was under a continuous state of emergency from 1964 to 2011.
7. Ouster Clauses
The Constitution is replete with ouster clauses in such areas as citizenship and emergency powers.
8. Code of Ethics
Articles 125(3A), (3B) & (3C) were inserted in the post Tun Salleh era to provide for discipline of judges who breach the code of ethics. The formulation of the code is by the executive and its use is in the hands of the Chief Justice.
9. Stare Decisis
This venerable doctrine of the common law stands in the way of many brilliant judges in the High Court and Court of Appeal who are forced to follow poor decisions by the Federal Court. In many cases scintillating landmark decisions at the High Court or Court of Appeal are overturned by a conservative Federal Court.
10. Pressures from Within
In the Likas by–election case of Haris Mohd Salleh v Ismail Majin (2000) we learnt that a judge’s freedom of action can be threatened by pressures from his judicial superiors. It is not unknown that some Chief Justices try to influence their juniors to reach particular outcomes and to show regard for bigger considerations.
11. Influence–peddling Lawyers
We learnt after a Royal Commission Report that judicial integrity can be compromised by influence–peddling lawyers. Despite the Royal Commission Report, no lawyer or judge was prosecuted.
12. Chief Justice’s Power to Empanel
An area discussed only hush–hush, is the unlimited power of the Chief Justice to empanel a hand–picked Bench that may be seen as ideologically inclined towards one side. In one case the CJ went to the extent of unconstitutionally asking a High Court judge to sit with him on the Federal Court.
An observer cannot fail to note that in many inter–racial or inter–religious disputes, the Bench that was constituted had no representation from the religious or racial minorities. In some cases involving Sabah and Sarawak, no effort was made to have an East Malaysian judge on the panel. The new CJ has fortunately addressed this issue and we have to wait and see.
13. Untrammeled Powers of the Attorney General
Under Article 145(3) the Attorney General “shall have the power, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for an offence….”. Nowhere does the Constitution say that the power of the AG shall be exclusive. Yet, many judges have given to the Attorney General an absolute monopoly over criminal prosecutions. The 1MDB debacle clearly illustrates the danger of trusting the Attorney General with unfettered discretion over prosecutions.
An additional and undesirable provision is Article 145(3A) which gives to the AG the power to choose the venue at which judicial proceedings will commence or be transferred to. It is not clear why the Attorney General’s discretion should not be subject to judicial review. Article 145(3) & (3A) should be subject to Article 8 – equality before the law.
14. Defiance of Judicial Decisions
Judicial independence has lately been compromised by officials in other agencies of the State e.g. the Selangor Islamic religious establishment, the National Registration Department and the police who have refused to obey judicial decisions. There is a host of cases where habeas corpus was issued and as soon as the detainee left the court, he was re–arrested under a different charge. Often a law or an action is invalidated by the High Court but the executive continues to rely on the invalidated law because an appeal against the judicial decision is pending.
15. Intimidation of Judges
Lately there has been intimidation of judges who are hearing religion–based cases. Demonstrations are held outside court precincts. A police report was filed against the judge who handed down the decision in the Meor Atiqulrrahman case.
16. Race and Religion Trump the Constitution
At one time Tun Suffian had observed that reading the law reports one would not be able to tell whether the judgment was written by a jurist of one race or religion or another. Regrettably those days are gone. There is now a predictability about most judicial decisions and the theories of “jurimetrics” need not be employed to foresee some results. Since the Islamisation wave of the 80s, some judges have found it fashionable to subordinate their duty to uphold the Constitution to their race or religion. I must quickly add however that many justices transcend race and religion, as they ought to, and I will not attempt to list them. The 2018 FC Indira Gandhi decision is a case in point.
• In many cases, Article 3(1) about Islam is regarded as more central than Article 4(1) on constitutional supremacy. We have a case in which there was the delightful nonsense that because Article 3 (on Islam) precedes Article 4 (on constitutional supremacy) therefore it is more important!
• Many civil judges are feigning ignorance of Article 3(4) which says in clear terms that “nothing in this Article derogates from any other provision of this Constitution”.
• Many civil judges are subordinating the entire chapter on fundamental rights to Article 3(1). Other civil courts are subordinating fundamental rights to Schedule 9 List II Paragraph 1. It is humbly submitted that Schedule 9 List II Paragraph 1 on the legislative power of the State Assemblies is subordinate to fundamental rights and not vice versa. In Fathul Bari Mat Jahya, a provision of a State Enactment requiring prior accreditation from Syariah authorities before anyone can speak about Islam other than in his house, was challenged as unconstitutional as it was an unreasonable limitation on free speech. In upholding the Enactment, the learned Chief Justice observed that “the integrity of the religion needs to be safeguarded at all cost”. In another case, the Muslim judge in evaluating the evidence made the remarkable suggestion that “Muslims do not lie!”
• In some cases, civil judges advise non–Muslims to be open to appearing before Syariah courts. This is contrary to the constitutional provision that Syariah courts have jurisdiction only over persons professing the religion of Islam.
• A painful and deeply unjust situation is how, due to a religiously biased interpretation of Article 121(1A), our civil courts are unwilling to help non–Muslim women whose spouses, to circumvent the civil law, convert to Islam and get the Syariah courts to participate in the ignoble, illegal and un–Islamic act of snatching infant children from the bosoms of their pining mothers. The children are unilaterally converted to Islam and the converting spouse often gains custody and guardianship in ex parte proceedings without the mother being heard. These incredibly unjust practices are bringing infamy to Islam and to our civil and Syariah courts.
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17. Grant of Honours
The power to recommend a judge for a civil honour belongs to the Chief Justice. It is recommended that as a matter of constitutional convention, every High Court judge should be conferred a Federal Datukship. Every Court of Appeal Judge should be awarded the title of a Tan Sri and the Chief Justice should be honoured with the title of Tun.
18. Ethnic and Gender Imbalances
An inclusive judiciary with a racial, religious, regional and gender balance is likely to arouse confidence in its ability to deliver justice fairly and impartially. Regrettably our courts suffer massive imbalances in their composition. An analysis of data for early 2018 indicates the following: –
Number of Judges of the Federal Court
• Malays, non–Malays: 84.6% to 15%
• Male, Female: 69% to 31%
• From the Judicial & Legal Service, Other sources: 85% to 15%
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Number of Judges of the Court of Appeal
• Malays, non–Malays: 76% to 24%
• Male, Female: 52% to 48%
• From the Judicial & Legal Service, Other sources: 80% to 20%
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Number of Judges of the High Court
• Malays, non–Malays: 74% to 26%
• Male, Female: 67% to 33%
• From the Judicial & Legal Service, Other sources: 72% to 28%
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Number of Judicial Commissioners
• Malays, non–Malays: 76.4% to 23.6%
• Male, Female: 76.5 % 23.5%
• From the Judicial & Legal Service, Other sources: 64.7% to 35%.
19. Judicial
Corruption
This is a well–known but not openly talked about phenomenon around the world. Up till the 1980s, the Malaysian judiciary had a high reputation for integrity. But regrettably many incidents throw doubt on how corruption–free our judiciary is. In the mid–90s there was an anonymous letter accusing the Chief Justice and 11 other judges of corruption and grave improprieties. The issue was not investigated and neither the author of the letter nor the judges targeted were investigated or prosecuted. In the case of Adorna Properties Sdn Bhd v Boonsom Boonyanit, a shameful decision on the transfer of stolen land was delivered and it took about 2 decades to set things right. In the Lingam Gate Royal Commission Report and subsequent litigation, evidence was put forward that a senior lawyer was in cahoots with a senior judge to recommend him for an award. There are stories about lawyers sponsoring the holidays abroad of a Chief Justice. There was scandalous news that the judge’s judgment was composed in one of the lawyer’s office.
The 1988 judicial crisis gave birth to number of other shameful tendencies in the judiciary that are too painful to acknowledge.
20. Refusal to Exercise Judicial Review
Barring some honourable exceptions, our judges have Achilles heels in a number of areas. Among them are ministerial (as opposed to police) discretion in preventive detention situations, 1MDB related cases, appeals to the Superior Courts in election disputes after GE13; challenges to the rigged electoral roll prior to GE14; the Anwar Ibrahim ‘Sodomy 2’ trials; arbitrary powers of the Attorney General under Article 145; and Syariah–civil disputes under Article 121(1A).
The courts often evade or avoid their responsibility by resorting to technicalities to dismiss an application or pleading. Among the reasons are: the doctrine of non–justiciability, lack of locus standi, or failure to observe proper procedure. In Mohd Juzaili Mohd Khamis, there was a Court of Appeal decision in favour of cross–dressers who were suffering from gender identity disorder and who had sought protection from arrest, harassment, loss of livelihood, gender discrimination and infringement of freedom of expression by the State law. Counsel for the defendant introduced a new argument that was never raised before the High Court or the Court of Appeal that the case involves the Federal Court’s exclusive jurisdiction and should have never gone to the lower courts. Despite innumerable precedents to the contrary, including one in Ah Thian, the Federal Court bent over backward to censure the Court of Appeal’s well–reasoned decision.
21. Experts dictate to the Courts
In legislation relating to Islamic banking, the Courts are ordered to comply with the decision of the Islamic advisory body. With all due respect, this is a serious violation of the doctrine of separation of powers and of judicial independence. Expert evidence while admissible should not be statutorily made binding on judges. The recent Semenyih decision has invalidated such a legislation in relation to compulsory acquisition of land.
Not all is lost, however. We have many activist, liberal and dynamic judges who give life to the law by reading it in the light of constitutional ideals. Whatever one’s view may be for or against a liberal, activist, dynamic or purposive interpretation of the law, it has to be conceded that judicial activism reflects judicial independence.
The record of the Malaysian Judiciary in this area is mixed. The general trend is towards a literal interpretation of subjective and wide powers. Nevertheless, there is no shortage of cases where judges have interpreted the constitution and laws creatively. In Kok Wah Kuan, Justice Richard Malanjum in a learned dissent upheld the doctrine of separation of powers. We are now blessed by the Semenyih Jaya decision and the Indira Gandhi verdict that restore some of the old lustre of Article 121. Their Lordships in Semenyih have boldly asserted that parliament is not supreme. It cannot provide in the Land Acquisition Act for outsiders to sit on the High Court; to reduce the High Court judge to a rubber stamp and to take away from him the right and duty to determine what amounts to adequate compensation under Article 13. A most significant aspect of the verdict is that the Land Acquisition Act’s ouster or finality clause cannot bar the superior courts from hearing an appeal. In Indira Gandhi (2018) the principle was emphasized that the judicial power must remain with the judiciary and cannot be transferred out to others even by an elected Parliament. The doctrine of basic structure was revived.
In the SIS Forum Case (2012) it was held that the restriction imposed by Parliament on free speech must be confined to the permissible enumerated grounds in Article 10(2).
The Constitution must be read as a whole. Article 10 (on free speech) must be read along with Article 8 (on equality) because equality requires fairness: Dr. Mohd Nasir [2006].
The law restricting rights must be precise and not vague: Pung Chen [1994]. The restriction imposed must be reasonable and proportionate: Sivarasa [2010] and Mat Shuhaimi Shafiei [2014].
A Constitution is a living and organic thing: Tan Tek Seng [1996]. Fundamental rights are part of the basic structure of the Constitution: Semenyih [2017]. In Sivarasa (2010), Lee Kwan Ho (2009) and Shamim Reza Abdul Samad (2009), the Federal Court held that fundamental rights provisions must generously interpreted. A prismatic approach to interpretation must be adopted. Provisions that limit a guaranteed right must be read restrictively. In line with this new jurisprudence, the terms ‘life’ and ‘liberty’ in Article 5 are being interpreted broadly to encompass many implied, un–enumerated and non–textual rights.
Article 8 on equality is being read as a generic article to require fair processes as well as fair results. In Tan Tek Seng, natural justice and unreasonableness have been linked with the Constitution.
Though judicial review of legislation is not an important feature of 61 years of our Constitution, there are nevertheless about 15 cases where a law of Parliament or the State Assembly was invalidated by the courts. An example is the Court of Appeal decision in Hilman (2011).
All in all, there is enough in Malaysian constitutional jurisprudence to provide a renaissance in public law. Some developments kindle hope that judges are bringing the Constitution from the peripheries to the centre.
The judicial winter that descended in 1998 has not yet fully thawed. The picture is mixed. There are currents and cross currents.
This is a well–known but not openly talked about phenomenon around the world. Up till the 1980s, the Malaysian judiciary had a high reputation for integrity. But regrettably many incidents throw doubt on how corruption–free our judiciary is. In the mid–90s there was an anonymous letter accusing the Chief Justice and 11 other judges of corruption and grave improprieties. The issue was not investigated and neither the author of the letter nor the judges targeted were investigated or prosecuted. In the case of Adorna Properties Sdn Bhd v Boonsom Boonyanit, a shameful decision on the transfer of stolen land was delivered and it took about 2 decades to set things right. In the Lingam Gate Royal Commission Report and subsequent litigation, evidence was put forward that a senior lawyer was in cahoots with a senior judge to recommend him for an award. There are stories about lawyers sponsoring the holidays abroad of a Chief Justice. There was scandalous news that the judge’s judgment was composed in one of the lawyer’s office.
The 1988 judicial crisis gave birth to number of other shameful tendencies in the judiciary that are too painful to acknowledge.
20. Refusal to Exercise Judicial Review
Barring some honourable exceptions, our judges have Achilles heels in a number of areas. Among them are ministerial (as opposed to police) discretion in preventive detention situations, 1MDB related cases, appeals to the Superior Courts in election disputes after GE13; challenges to the rigged electoral roll prior to GE14; the Anwar Ibrahim ‘Sodomy 2’ trials; arbitrary powers of the Attorney General under Article 145; and Syariah–civil disputes under Article 121(1A).
The courts often evade or avoid their responsibility by resorting to technicalities to dismiss an application or pleading. Among the reasons are: the doctrine of non–justiciability, lack of locus standi, or failure to observe proper procedure. In Mohd Juzaili Mohd Khamis, there was a Court of Appeal decision in favour of cross–dressers who were suffering from gender identity disorder and who had sought protection from arrest, harassment, loss of livelihood, gender discrimination and infringement of freedom of expression by the State law. Counsel for the defendant introduced a new argument that was never raised before the High Court or the Court of Appeal that the case involves the Federal Court’s exclusive jurisdiction and should have never gone to the lower courts. Despite innumerable precedents to the contrary, including one in Ah Thian, the Federal Court bent over backward to censure the Court of Appeal’s well–reasoned decision.
21. Experts dictate to the Courts
In legislation relating to Islamic banking, the Courts are ordered to comply with the decision of the Islamic advisory body. With all due respect, this is a serious violation of the doctrine of separation of powers and of judicial independence. Expert evidence while admissible should not be statutorily made binding on judges. The recent Semenyih decision has invalidated such a legislation in relation to compulsory acquisition of land.
JUDICIAL
ACTIVISM v JUDICIAL PASSIVISM
Not all is lost, however. We have many activist, liberal and dynamic judges who give life to the law by reading it in the light of constitutional ideals. Whatever one’s view may be for or against a liberal, activist, dynamic or purposive interpretation of the law, it has to be conceded that judicial activism reflects judicial independence.
The record of the Malaysian Judiciary in this area is mixed. The general trend is towards a literal interpretation of subjective and wide powers. Nevertheless, there is no shortage of cases where judges have interpreted the constitution and laws creatively. In Kok Wah Kuan, Justice Richard Malanjum in a learned dissent upheld the doctrine of separation of powers. We are now blessed by the Semenyih Jaya decision and the Indira Gandhi verdict that restore some of the old lustre of Article 121. Their Lordships in Semenyih have boldly asserted that parliament is not supreme. It cannot provide in the Land Acquisition Act for outsiders to sit on the High Court; to reduce the High Court judge to a rubber stamp and to take away from him the right and duty to determine what amounts to adequate compensation under Article 13. A most significant aspect of the verdict is that the Land Acquisition Act’s ouster or finality clause cannot bar the superior courts from hearing an appeal. In Indira Gandhi (2018) the principle was emphasized that the judicial power must remain with the judiciary and cannot be transferred out to others even by an elected Parliament. The doctrine of basic structure was revived.
In the SIS Forum Case (2012) it was held that the restriction imposed by Parliament on free speech must be confined to the permissible enumerated grounds in Article 10(2).
The Constitution must be read as a whole. Article 10 (on free speech) must be read along with Article 8 (on equality) because equality requires fairness: Dr. Mohd Nasir [2006].
The law restricting rights must be precise and not vague: Pung Chen [1994]. The restriction imposed must be reasonable and proportionate: Sivarasa [2010] and Mat Shuhaimi Shafiei [2014].
A Constitution is a living and organic thing: Tan Tek Seng [1996]. Fundamental rights are part of the basic structure of the Constitution: Semenyih [2017]. In Sivarasa (2010), Lee Kwan Ho (2009) and Shamim Reza Abdul Samad (2009), the Federal Court held that fundamental rights provisions must generously interpreted. A prismatic approach to interpretation must be adopted. Provisions that limit a guaranteed right must be read restrictively. In line with this new jurisprudence, the terms ‘life’ and ‘liberty’ in Article 5 are being interpreted broadly to encompass many implied, un–enumerated and non–textual rights.
Article 8 on equality is being read as a generic article to require fair processes as well as fair results. In Tan Tek Seng, natural justice and unreasonableness have been linked with the Constitution.
Though judicial review of legislation is not an important feature of 61 years of our Constitution, there are nevertheless about 15 cases where a law of Parliament or the State Assembly was invalidated by the courts. An example is the Court of Appeal decision in Hilman (2011).
All in all, there is enough in Malaysian constitutional jurisprudence to provide a renaissance in public law. Some developments kindle hope that judges are bringing the Constitution from the peripheries to the centre.
CONCLUSION
The judicial winter that descended in 1998 has not yet fully thawed. The picture is mixed. There are currents and cross currents.
On the positive side we have more judicial activism today than in the days of Tun Salleh though it must be recorded that the Salleh court (though not Tun Salleh himself) was the most activist constitutional court in Malaysian history.
The burst of judicial assertiveness in the Tun Salleh era as evidenced in such cases as JP Berthelsen, Mamat Daud, and Teoh Eng Huat has reappeared.
The basic structure doctrine has been revived. The judicial power of the courts eclipsed by an amendment to Article 121 seems to have been restored. The review power of the civil courts over Syariah courts has been asserted. Administrative law seems to be in renaissance. Ouster clauses are being denuded of their exclusionary power. The rules of locus standi have been liberalized. A new doctrine of proportionality in administrative law has been introduced.
Natural justice has been upgraded from being a rule of common law to being a part of due process and equal treatment under the Constitution’s Articles 5 and 8. In many cases the Constitution is being interpreted prismatically. In an extremely innovative decision, the court has asserted that the words ‘life’, in Article 5 includes livelihood. The word ‘liberty’ includes the right to go to the courts. The word ‘law’ in Articles 5 and 10 must be read to mean a ‘reasonable law’.
Not all is satisfactory on the judicial front. But despite some flaws in the laws, judges are as free to walk the path of justice as their conviction beckons them to. Many do. Ultimately the issue is one of character, courage and integrity.
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[1] P.U.(A) 384/2006; P.U. (A) 385/2006
Emeritus Professor Dr Shad Faruqi is Tunku Abdul Rahman Foundation Professor of Law at University of Malaya.
Memorial Lecture Series
In 2011, Bar Council Malaysia instituted the Raja Aziz Addruse Memorial Lecture series in memory of Raja Aziz Addruse, the Malaysian Bar’s President thrice over.
Please click on the links below to access copies of the previous Raja Aziz Addruse Memorial Lectures:
Ben Emmerson QC, United Nations Special Rapporteur on Human Rights and Counter–Terrorism: “Counter–Terrorism, Human Rights and the Rule of Law — The UN Perspective” (27 Sept 2012)