There the land, along with other two branches of

There
are always debates and questions raised by public regarding the judicial
independence in Malaysia of today.

In
every democratic system, the judiciary does occupy a central place in the constitutional
setup of the land, along with other two branches of government which are namely
executive branch and legislative branch. Under judicial system, judges are
essential part of the system of checks and balances that is put in place to
prevent abuse of power. It is of paramount importance that there should be a
high degree of public confidence in the integrity and impartiality of the
judiciary. The judiciary must be free from undue influence from both the public
and private sectors. Judges must also be autonomous in the performance of their
judicial function. Therefore, it is known that what have been mentioned above
emphasizes on a term called ‘judicial independence’ which has been an arena for
the promotion of constitutionalism and the moderate state.

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Basically
what prominent Sir Brown-Wilkinson1
viewed about independence of the judiciary actually refers to the ability of a
judge to decide cases on their merits and he or she is free from any pressure
when making judgment. In Malaysia, our constitution attempts to secure judicial
independence in several ways, including through method of appointment, through
security of tenure, through terms of service and etc.

With
regard to method of appointment of judges, in Malaysia, appointments are in the
hands of the executive branch. However, to ensure that only persons of
integrity and calibre are elevated to the Bench, there are two safeguards.
Firstly, Article 123 of the Federal Constitution of Malaysia prescribes the
minimum qualification. A nominee to the superior courts must have at least 10
years’ experience at the Bar or as a member of the judicial and legal service. Secondly,
Article 122B requires an extensive process of consultation of the Conference of
Rulers to appoint judges. Besides, Article 125(1) provides that a judge of the Supreme
Court shall hold office until he attains the age of 65 years or such later
time, not being later that 6 months after he attains that age, as the Yang
di-Pertuan Agong (YDPA) may approve. Our Article 125(6) also provides that
Parliament shall provide for the remuneration of the judges of the Supreme
Court and the remuneration shall be charged on the Consolidated Fund.
Furthermore, the Supreme Court judge’s remuneration and terms of office,
including pension rights can be improved, but cannot be changed to their
detriment.2 Under
Article 125(3), the YDPA can dismiss a judge only after a judicial tribunal of
not less than five local or Commonwealth judges has recommended removal on the
grounds of the breach of the code of ethics, inability from infirmity of body
or mind, or any other cause to discharge the function of a judge’s office.

In
the UK, judiciary has its origins in 1178, when Henry II appointed five members
of his personal household “to hear all the complaints of the realm and to
do right”. Although the role of Lord Chancellor is understood to date back
to the 7th Century, the notion of judicial independence from the power of the
executive did not secure its victory over arbitrary Royal prerogative until the
Act of Settlement of 1701. On inviting William of Orange to take the Crown from
James II in 1688, Parliament presented its “Heads of Grievance”,
amongst which were proposals for freeing the judiciary from the interference it
had suffered under the Stuarts. In spite of the fact that these measures were
omitted from the Bill of Rights3,
William III observed the constitutional proposals, which were enacted in 1701. The
“Glorious Revolution” thus established the rule of law in the place
of the will of the monarch, although in the absence of a “written
constitution”, the doctrine of Parliamentary sovereignty meant that the
law was whatever Parliament voted it to be.

The
independence of judges in the UK is protected in several ways. Judiciary is
independent of the executive and the legislature, and vice versa. Furthermore,
judges do not get involved in political debate. It is noted that those involved
in the judiciary are paid out of the Consolidated Fund in order to ensure that
they are free from annual parliamentary criticism that might be used to set out
future judicial decisions. Apart from modern rules relating to age and health,
judges of the High Court and above cannot be removed from office without an
address passed by both Houses of Parliament. So to say that judges are almost
entirely immune from the risk of being sued or prosecuted for what they do in
their capacity as a judge. The Constitutional Reform Act 2005, which came into
force in April 2006, considerably modified the role of the Lord Chancellor in the
UK and in so doing, strengthened the independence of the judiciary. After the
aforementioned Act was passed, the Judicial Appointment Commission (JAC) which is
a non-departmental public body was created to select candidates for judicial
office in courts and tribunals in England and Wales, and for some tribunals
with UK-wide jurisdiction. It is interesting to understand that only the
reigning monarch in the UK has sovereign immunity and is immune from arrest in
all cases, and as such cannot be prosecuted. Under Crown Proceedings Act of
1947, the ‘crown’ referred to in the stated Act is the State or so-called the government
departments and agencies.

In
Singapore, there are also provisions which are said to secure judicial
independence. For instance, Article 98(1) of the Constitution of the Republic
of Singapore provides for the judges’ security of tenure in almost identical
terms as Article 125(6) of our Federal Constitution and Article 98(8) of the
Constitution of Singapore corresponds almost identically with our Article 125(7).
One unique feature of Singapore’s judicial system is the constitutional
provision for Judicial Commissioners who are appointed on fixed terms by the
President of Singapore. Their Article 94(4) provides that a person who is
qualified for appointment as a judge of the Supreme Court may be appointed as a
Judicial Commissioner for the purpose of facilitating the disposal of business
in the Supreme Court. This appointment is for ‘such period or periods as the
President thinks fit’. Unlike the Supreme Court judge, the Judicial
Commissioner does not have security of tenure and his privileges and immunities
lasts only for the duration that he is on the Bench. So far, appointments as
Judicial Commissioners appear to be preludes for future elevation with suitable
candidates being elevated upon the successful completion of a probationary
period.

Back
to the recent situation in Malaysia, it is known that the system of appointment
of judges has been always subjected to critical scrutiny. For example, it has
been noted that most appointees tend to be from the Judicial and Legal Service
and not from the Bar. This has been criticized as providing scope for patronage
which may lead to conflict of interest. In the case of Dato’ Seri Anwar Ibrahim
v. PP4,
the court made it clear that the actual appointing authority is in the hand of the
Prime Minister (PM). The YDPA is usually following the decision made by the PM.
In other words, the PM could insist on the appointment of a judge even if the
Conference of Rulers did not agree with it. The appointment of judges is a
matter between the YDPA and the PM personally.

In
addition, beginning with United Malays National Organisation (UMNO) party
elections in 1987, the 1988 Malaysian constitutional crisis was a series of
events that many saw the eventual sacking of Tun Salleh Abas who was then Lord
President of the Supreme Court and two other Supreme Court judges as the end of
judicial independence in Malaysia. As the aftermath of the judicial crisis, Article
121(1) of our Federal Constitution was amended during the Mahathir’s
administration through the Constitution (Amendment) Act 19885. Prior
to that amendment, the original Article 121(1) stated that the judicial power
of the Federation shall be vested in a Supreme Court (now Federal Court) and
such inferior courts as may be provided by federal law. The term ‘judicial
power’ was expressly deleted after the amendment, resulting in that no longer
‘judicial power’ is vested in the courts and their jurisdictions and powers are
defined by laws enacted by Parliament. In the case of PP v. Kok Wah Kuan6,
the Federal Court has decided to take a narrow interpretation of Article 121(1)
and the judge remarked that to what extent ‘judicial powers’ are vested in the
two High Courts depends on what federal law provides, not on the interpretation
the term ‘judicial power’ as prior to the amendment. So to say, the judicial
crisis happening in 1988 has caused the repercussions that the executive is
seen to be encroaching onto judges’ powers.

In
sum, not all is satisfactory on the judicial front in Malaysian context. In
light of the fact that there are some defects in our laws, we learn that judges’
freedom of action can be threatened by pressures from any parties. Indeed,
judicial independence underpins the democratic framework of a country, but ultimately,
integrity and impartiality of judges are personal attributes that no law can
ensure.