The Malaysian Bar, the Advocates Association of Sarawak, and the Sabah Law Society are appalled by the news reports expressing calls by political figures for interference by the Prime Minister in the judicial process; some have even gone as far as demanding for direct interference in the Federal Court decision concerning the case of former Prime Minister, Dato’ Sri Najib Razak (“Najib”), and for a change of the current Attorney General. It is deeply disturbing that such calls to interfere in the judicial process, or to replace the current Attorney General, are made in blatant disregard of the principle of separation of powers and the entrenched constitutional democracy of Malaysia. Malaysia is a country that values the separation of powers between the Executive, Legislative and Judicial branches, as this provides checks and balances against one another.
Obviously, any calls to interfere or to change personnel within the office of the Chief Justice of Malaysia and/or the Attorney General, when one side loses in a court case, is but a subjective call, because at the other side of the spectrum is a side that has no such misgivings.
The primary duty of the Attorney General is to uphold the integrity of the justice system within his/her powers under the Federal Constitution, and the primary duty of the Judiciary is to interpret and give effect to the law. At the heart of the Judiciary is the independence of judges to exercise their powers without any intrusion from individuals, entities, or political parties. It is the Judiciary that bears the responsibility of resolving disputes fairly in accordance with prevailing laws, not acquiescing to the requests of politicians, or anyone else, for that matter. The sheer audacity by politicians in seeking the sitting Prime Minister’s interference in this case, if true, is unacceptable and preposterous.
It bears reminding that the fundamental concepts of judicial independence and separation of powers between the three pillars of governance — the Legislative, Executive, and Judiciary — are basic hallmarks of any functioning democracy. These principles are integral to maintaining the rule of law — a concept best encapsulated in the words of one of the founding fathers of the United States of America, James Madison:
“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”1
Political interference in any case — especially one of tremendous public interest — directly encroaches upon the functions and duties of the Attorney General and the Court. The unconstitutionality of such alleged behaviour will result in a grievous erosion of justice and will cast aspersions on the integrity of the Attorney General and the Judiciary. Such a petition by these politicians harks back to the dark days of the 1988 judicial crisis which pitted the Executive against the Judiciary, and which seemed to eviscerate the image of the Judiciary as an independent pillar of governance. As a nation, Malaysia had witnessed an upheaval that culminated in the suspension and removal of the then-Lord President (the Office has since been renamed “Chief Justice”) Tun Salleh Abas and other judges,2 marking the beginning of a negative change in public perception towards the Judiciary.3
The Malaysian Bar, the Advocates Association of Sarawak, and the Sabah Law Society condemn any act of politicians seeking for an intervention by the Prime Minister in an ongoing matter before the Judiciary, at all material points.
We are also of the view that lawyers — whether involved in the matter or not — should not be making negative remarks to undermine a decision delivered by our Federal Court, which ought to be treated with utmost respect, and especially when such remarks are legally unsound and have the effect of fomenting distrust in the Judiciary among the rakyat. Such behaviour is flagrant contempt and disrespect to the rule of law and the doctrine of separation of powers. It is pertinent to note that there have been instances in the past where politicians have been admonished, and some even charged for such actions to interfere, as these actions are considered an abuse of power and a misfeasance of public duties.4
The acts by politicians in recent history openly discussing calls to interfere with the Judiciary in legal actions erode faith in the Judiciary and are deeply damaging to the rule of law in Malaysia. This sort of behaviour is tantamount to an attack on the independence of the Judiciary. Politicians should not be making scurrilous remarks that only serve to perpetuate misgivings and suspicion amongst the rakyat towards our Judiciary. The time has come for politicians to understand their roles in perpetuating and strengthening the rule of law, including the doctrine of separation of powers, instead of turning Malaysia into a legal pariah, where the rule of law is not sacrosanct, whenever they utter unjustifiable statements.
We must never forget that it is the Courts that we turn to for justice, as they are the last bastion of hope and final line of legal recourse available. The Courts are beholden to no one but the law, and it is the duty of judges to dispense justice in a manner that is in accordance with the law, and not in accordance with the wishes of individuals or political parties. It would be a dark day indeed when the lines between our governing institutions are blurred.
The Malaysian Bar, the Advocates Association of Sarawak, and the Sabah Law Society trust that the Prime Minister will do the right thing and not act to the contrary, as that would be an unconscionable abuse of power and a travesty to justice.
Karen Cheah Yee Lynn
Advocates Association of Sarawak
Sabah Law Society
29 August 2022
1 The Founders’ Constitution, Volume 1, Chapter 10, Document 14: James Madison, Federalist, The University of Chicago Press.
2 “Govt to ensure independence of judiciary, legislative bodies, says PM”, The Edge Markets, 17 June 2022.
3 “Ex-judge: Judiciary never fully recovered from 1988 crisis”, Malay Mail, 20 Sept 2015.
4 “Damning conclusions from Lingam video findings”, The Malaysian Insider, Malaysian Bar, 18 May 2008.