THE CONCEPT OF JUDICIAL INDEPENDENCE

In a liberal republican democracy, judicial independence functions to set out and also
protect political rights, civil liberties and also the rule of law. As such, the three pairs of
components are ought to be existed and balanced, in which the first pair of the component
is the utility and efficiency. For this, courts must be useful to the society and must be
efficient in all their conducts. In terms of utility, they must justly punish crimes, protect
civil liberties and fairly resolve disputes. While in terms of efficiency, they should not
cause waste and delay as these will lead to diminish of political support. The next pair of
the component is the insulation and accountability. This indicates that the court has to be
insulated from the politics of the other bodies which are the executive, legislature and
political parties and at the same time not being influenced by any social and economic
power. Besides, certain form of accountability should also contain in the court, this is
because insufficient of accountability will erode public support towards the courts and
encourages other political branches in attempting to exercise control so as to compensate
for the lack of accountability. The last pair of the component will be the authority and
restraint. This pair of component concern on the power of the courts. Courts must hold
the judicial authority of the government and the ability to enforce their decisions and
orders. The proper and correct incorporation of judicial authority in fact stabilises and
makes others institutions appear to be more resilient. The court must also at the same time
be restrained and must have self-imposed limits on the ability to act for executive or
legislature would not long permit limitations upon their own powers in the face of an
unrestrained court system.

In Malaysia, one of the characteristics of the law that tends to irritate other sources of
power is the demand of the law's practitioners, which is the judge for judiciary
independence. The irritation is often correct of powerful and rich people and the
politicians, government officials and media editors and their columnists. In the law and
the courts, those who are used to be obeyed and feared commonly find it intensely
annoying that there is a source of power that they cannot control or buy. The essence of a
modern democracy is yet observance of the rule of law, where the rule of law will not
prevail without assuring the judges and the practicing lawyers and also the legal
academics, which its a very high measure of independence of mind and action. Judicial
independence embodies both the individual and institutional aspects. As an institution, the
judiciary must be respected as a separate, distinct and independent branch of government.
At the same time, within the judiciary, the individual judges must have the substantive
freedom necessary to perform their duties in an independent and impartial manner,
beyond any improper or undisclosed influence and pressure. Besides, the notion and
concept of judicial independence the judges to be free from any sort of interference in the
exercise of their judicial powers whereby each judge ought to be independent from
external influences which may seek to reduce his or her impartiality and objectivity. This
needs independence both from the other branches of government and from any other
influences that might influence the capacity of a judge in deciding a case strictly on the
basis of its legal merits. On top of that, although the systems of appellate and judicial
review necessarily impinge on a judge's independence actions, it also requires
independence from other judges involved in decision making. An impartial assessment of
the facts and objective application of the law are necessary for legal independence.

Practically, the doctrine of judicial independence incorporates a number of different

factors, which in relation to the individual judge considerations, for example the security
of tenure, competent appointments and ensuring adequate remuneration are minimum
requirements for the maintenance of judicial independence. On the other hand, at an
institutional level, those elements like separation from the other arms of government,
administrative independence, sufficient resources and exclusive jurisdiction over matters
for decision are vital for the establishment and maintenance of an effective judicature.

SEPARATION OF POWERS

In Malaysia, though they might be no overlaps in the membership related to the position
of the judiciary and the legislature, it is very important to note that there is existence of
overlaps regarding the functions, for example, the legislature is viewed as performing the
function of the judiciary by regulating its own composition and procedure like
enforcement of breach of parliamentary privilege or contempt of parliament which can be
seen under Article 63(1) which states that the validity of any proceedings in either House
of Parliament or any committee shall not be questioned in any court. The judicial organ is
viewed as performing the function and role of the legislature through the doctrine of
judicial precedent. As to the relationship between the judiciary and the executive, even
though there maybe no overlaps in the membership, Malaysias arm has always
dominated the government, more so in recent years at the expense of the judiciary,
generally the weakest arm of the tripartite structure. At this point, it is vital to take note
that the decline of the equal status of the judiciary is due to the two principal factors in
which the first is the executive sees itself as the legitimate representation of the popular
will expressed through its election and control of Parliament. This is also interpreted as a
mandate for its legislative programmes and therefore, resents judicial pronouncements
that challenge legislative or executive acts which can be seen in the Judicial Crisis of
1988. The second factor causing the judicial downgrading flowed from earlier events, that
is, the enactment of the Constitutional (Amendment) Act, 1988. The enactment of the
Amendment severely restricted the constitutional role of the judiciary and left no doubt as
to its functions as in Article 121 which provides that the judicial power is no longer
vested in the courts and their jurisdictions and powers are defined by laws enacted by
Parliament. Looking at the relationship between the judiciary and the executive, the
executive arm plays a vital role in the appointment of judges of Federal Court, Court of
Appeal and of the High Courts as under Article 122B where the YPDA acts on the advice
of the Prime Minister in appointing the judges. A nominee to the superior courts must
have at least 10 years of experience at the Bar or as a member of the judicial and legal
service. Besides, Article 122B requires an extensive process of consultation. The AG who
is part of the executive organ is viewed as performing a judicial function and the PM is
behind his or her appointment as stated under the Article 145(1), 145(2) and 145(3) of the
Federal Constitution. The judges of the Sessions and magistrates courts are members of
the judicial and legal service. They are transferable from the Bench to the Attorney-
Generals Chambers and the government departments. Their institutional link with the
executive and the influence of the executive on their transferability and career paths
subject them to problems and pressures that should have been avoided. The Chairpersons
of hundreds of administrative tribunals are not full-time judges and often they are
administrators or politicians with no legal qualification. Their links with the executive
may create the appearance of institutional bias. There are the availability of check and
balance between the legislature and the judiciary, whereby no members of Parliament can
hold judicial office and vice versa. This is to maintain the independence of the judiciary,
which means that the members of the judiciary must not engage themselves in politics.
The judiciary can declare an Act of Parliament as unconstitutional under Article 4(1) on
the supremacy of the Constitution. The judges are expected to perform their duty
according to the obligations of the Constitution and their understanding of the law. The
conduct of the judges may not be the subject of discussion in the State Assembly and
although it may be discussed in the Parliament, it can only be done on a substantive
motion of which notice has been given by not less than one quarter of the total number of
members of that House as in Article 127 of the Federal Constitution. The judiciary is able
to control over the subsidiary legislation. This is by virtue of sections 23(1) and 87(d) of
the Interpretation Acts 1948 and 1967 which, in effect, lay down the principle that any
subsidiary legislation which is inconsistent with an Act of Parliament or State Enactment
shall be void to the extent of the inconsistency. However as for the check and balances
among the executive and judiciary, where no member of the executive can hold judicial
office and vice versa. This is to protect the independence of the judiciary which is to
avoid from having conflict of interest, and many more. Judges do not hold their office at
the pleasure of the YDPA or the executive. They can be removed from office but only on
misbehaviour or inability to properly discharge the functions of their office as can be
viewed under Article 125(3) of the Federal Constitution. Although the executive arm
plays a vital role in the appointment of judges of the superior courts, there are safeguards.
The Federal Constitution contains express provisions to secure independence of the
judiciary, either from the control or interference by the executive or the legislature. These
includes: the procedure for the removal of superior judges. The Article 125(3) of the
Federal constitution guarantees on the judges remuneration and terms of office as in
Article 125, prohibitions on public discussion on judges conduct in Article 127 and
power of the judges to punish for contempt in Article 126. Looking at the commentary of
Art 122B, the Prime Minister could insist on the appointment of a judge even if the
Conference of Rulers did not agree or withheld its views, or delayed the giving of its
advice to the YDPA. The appointment of judges is a matter between the YDPA and the
Prime Minister personally. The Prime Minister need not respond to a request from the
Conference of Rulers for revocation of an appointment which has already been made. It is
only consultation. This means no consent is required and it is not binding. By law, judges
of the subordinate courts are part of the Judicial and Legal Service of the Federation and
are transferable from the Bench to the AGs office chamber. There are weaknesses of the
parliamentary procedures such as the question time, debates and the committees where
question time is viewed as a mere parliamentary ritual. Besides, the inefficiency of check
and balances is also due to the lack of equal information to the Members of Parliament,
which simply means that those from the opposition parties lack information and thus
unable to play the role of a check and balance effectively.

In short, in spite of the overlapping in membership, functions and powers, Malaysian

constitution secures this dimension quite well. There is separation of powers between the
judiciary, on the one side and the executive and the legislature on the other. For example,
the Constitution clearly states the functions of these three organs. Thus, the system as
practised by Malaysia is far better than the UKs though it is closer to the UK rather than
the American model as we have checks and balances in place to prevent abuse of power.
Perhaps what is needed is to make sure that the checks and balances in place are effective
enough to prevent the so-called abuse of power.
Document of Destiny

Role & Function of the Judiciary

In Malaysia, the task and power of judiciary are to interpret the Federal and
States Constitution; to judge and decide civil and criminal cases; to interpret
written law amended by Federal or States and judicial review to ensure
Parliament or States and executive do not abuse the power.

The interpretive function of the courts required judges to interpret static

clauses of the Constitution and statutes in such a way as to give them life and
meaning. Therefore, according to Professor Joseph Raz, the independence of
the judiciary must be guaranteed to ensure Constitutional is interpreted with the
notion of rule of law. However, interpretation is influenced by the judges
perception of his role at the heart of the legal system. The constitution in Art
4(1), 128(1) 130 and 162(6) explicitly confers on the superior courts the power
and duty to protect and defend the basic charter against all those who would lay
harsh hands upon the ark of Constitution. 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 the 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. Hence, the judiciary is the guardian and protector to our Federal
Constitution as well as upheld the rule of law.

The superior courts are also the ultimate arbiter of disputes between the citizen
and the state. They delineate the legal line beyond which the might of the state
cannot trump the rights of citizen. To preserve judicial independence and
integrity, Articles 121-131A of the Constitution incorporate several safeguards
into the fabric of law. To promote public confidence in our system of justice, the
independence of the higher ranks of the judiciary is guaranteed by the
Constitution. As Lord Taylor of Gosforth said: Public confidence in the fairness
of the justice system depends crucially on the judges being believed to be
impartial, free from bias and from extraneous influence. Therefore, judges have
a duty to determine, independently of any historical limitations, the
contemporary, core, constitutional values that deserved protection.

In Liyanage v R, 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 cases.
The principle of constitutional supremacy, boldly proclaimed in Art 4(1), is more
notional than real. Malaysia courts have shown extreme reluctance to invalidate
parliamentary legislation on the ground of constitutionality. For instances in the
case of Mohd Yusof Mohamad v Kerajaan, the judges often rely to justify their
refusal to review executive and legislative acts.
Issues of constitutional law are often reduced to issues of administrative law as
we can see so many administrative law e.g. ISA (repealed), OSA, Sedition Act,
Police Act, PCA, Pota, Poca, Sosma, CMC and more alarming NSC recently.
However, in the last 20 years stirrings of judicial activism have been felt and this
can be seen in the cases like Tan Tek Seng, Hong Leong Equipment and Sugumar
Balakrishan where administrative law principle of natural justice and
reasonableness have been linked with the Constitution.

1st Indicator - Method of appointment

Around the world judicial appointments follow one or more of the following
procedures:
1. Aspiring candidates apply or are nominated
2. A Judicial Nominating Commission scrutinizes the applications of nominations
and recommends two or three best qualified candidates to the executive.
3. The executive makes the formal appointment.
4. There is a procedure for confirmation by the Senate or by some other
confirming body.
5. In US, State judges are elected by the people.
Looking at the relationship between the judiciary and the executive, the
executive arm plays a vital role in the appointment of judges of Federal Court,
Court of Appeal and of the High Courts as under Article 122B where the YPDA
acts on the advice of the Prime Minister in appointing the judges. Therefore, the
Prime Minister could insist on the appointment of a judge even if the Conference
of Rulers did not agree or withheld its views, or delayed the giving of its advice to
the YDPA. The appointment of judges is a matter between the YDPA and the
Prime Minister personally. The Prime Minister need not respond to a request from
the Conference of Rulers for revocation of an appointment which has already
been made. This is affirmed in the Court in Dato Seri Anwar Ibrahim, where
the Court made it clear that the actual appointing authority is the Prime Minister.
A nominee to the superior courts must have at least 10 years of experience at
the Bar or as a member of the judicial and legal service. Besides, Article 122B
requires an extensive process of consultation. The AG who is part of the
executive organ is viewed as performing a judicial function and the PM is behind
his or her appointment as stated under the Article 145(1), 145(2) and 145(3) of
the Federal Constitution. The judges of the Sessions and magistrates courts are
members of the judicial and legal service. They are transferable from the Bench
to the Attorney-Generals Chambers and the government departments. Their
institutional link with the executive and the influence of the executive on their
transferability and career paths subject them to problems and pressures that
should have been avoided. The Chairpersons of hundreds of administrative
tribunals are not full-time judges and often they are administrators or politicians
with no legal qualification. Their links with the executive may create the
appearance of institutional bias.
This can be seen when the judicial posts seem to be open to brokering where the
process is riven by politics and factionalism. As in the 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.

2nd Indicator - Security of Tenure

Unlike civil servants, superior court judges have permanency in their tenure
whereby they cannot be removed from office by Parliament as in the US and UK
nor can the executive dismiss judges summarily as was colonial practice in the
days before Merdeka.
In Malaysia, the security of tenure of judges of Federal Court is guaranteed under
Article 125(1), however under Article 125 (3), if representations are made to the
YDA 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
functions of his office. Furthermore under clause (4) , the YDA 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 YDA. Notably that under Article 125(3), the initiative for the
appointment of the tribunal can come from the Prime Minister or from the Chief
Justice after consulting with the premier. Bear in mind that 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. Sadly, the constitutional safeguards
against unfair dismissal of judges were severely tested in the tragic events of
1988 which shook the judiciary. Here, many flaws in the law were detected.
1. It was noted that Article 125(4) is silent about the seniority of tribunal
members in relation to the judge to be tried. A number of very senior retired
judges were available but were not picked rather than picking junior on Tan Sri
Hamid tribunal.
2. The Speaker of the Dewan Rakyat was appointed a member of tribunal beside
his junior status as a former High Court 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 under Article 125(4).
3. Tan Sri Hamid should have disqualified under nemo judex in causa sua - the
rule against bias.
4. Dismissal of Tan Sri Wan Suleiman and Tan Sri George Seah for misconduct
where their misconduct was nothing but a simple and courageous performance
of judicial duty to hear an urgent case.
Moreover, on 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 YDA under
Article 125(3) need not be made.
Due to the cataclysmic events of 1988 and the consequent amendment to Article
125 of the Constitution, judicial conduct will remain in the limelight.

3rd Indicator - 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.
In Majlis Peguam v Raja Segaran, 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 Article 125 and 127 of
the Constitution. Openly criticizing the judiciary could bring about public
misunderstanding of the system and would then produce unwarranted public
misgivings. An open discussion of the conduct of His Majestys judges could
amount to questioning the wisdom of the YDA in his selection. With all due
respect, Article 125 and 127 nowhere require that judicial misconduct should be
immune from public scrutiny.
4th Indicator - 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.
Contempt of court can be defines as any challenge to the authority and dignity of
the judicial process. 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.
There is a need to provide the courts with power to enforce its judgment and it
has applied strictly in Malaysia. In MBF Holdings v Houng Hai Kong the Court
stated that it is paramount in the public interest that every court should have
power and authority or jurisdiction to punish persons who scandalize it or
disobey orders made by it. If such power is absent, then the public will lose all
confidence in the authority of the judicial arm of the state leading to anarchy and
disorder. This is the juridical basis for the law of contempt.
However, there is critical issue arises when a judges freedom of action can also
be threatened by pressures from within the judicial branch. This can be seen in
the Likas election case where the 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.

5th Indicator - Judicial immunity

In the performance of their judicial functions all judges are immune from the law
of torts and crime. Every judge is entitled to protection from liability for anything
said or done while acting judicially.
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.
However, the Federal Constitution is silent on the issue of judicial immunity but
there is number of other laws confer absolute privilege on judicial proceedings.
For instances, the Defamation Act in Section 11(1) confers absolute privilege on
reports of judicial proceeding including pleadings, judgments, sentences or
findings. Similarly, under Section 6(3) of the Government Proceeding Act 1956
there is absolute immunity in torts for all acts performed in a judicial capacity.
The judges are also immune from prosecuting in criminal courts for offences like
sedition, breach of the Official Secret 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.
For instances, in a case brought by Indah Desa Saujana Corporation against
Justice James Foong, 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.

6th Indicator - Judicial review???

The power of judicial review is believed to be an inherent power of the courts. It
is implicit in the doctrine of separation of powers. Regrettably, the issue of the
courts inherent power of judicial review has become quite clouded after the
amendment to Article 121(1) in 1988.
From obiter dicta of cases, two opinions emerged. One says that Malaysian
judiciary still vested with judicial power, the other says no. This can be seen in
the case of Kok Wah Kuan v PP where Gopal Sri Ram JCA in the Court of
Appeal explained that the amendment did not have the effect of divesting the
courts pf judicial power of the federation. However, in Federal Court, Abdul
Hamid Mohamad PCA noted that even if we say that judicial power still vests in
courts, in law, the nature and extent of the power depends on what the
Constitution provides. The court took similar view in Pengurusan Danaharta
Nasional Berhad v Tang Kwor Ham whereby the Federal Court held that it
was constitutional for the parliament to oust the jurisdiction to conduct a judicial
review.

Conclusion
By looking at the indicators and provision under Article 121 to 131A of Federal
Constitution, it is clearly that Malaysia constitution does not provide sufficient
guarantee of independence of the judiciary. It is still far from what the doctrine of
separation of powers and rule of law.
In a democratic society courts supply one of the most prominent mechanisms for
protecting the rights and liberties of citizens. At its core the judicial task is to
safeguard certain value like human dignity, rule of law, constitutionalism and
limited government. This task of preserving, protecting and defending
constitutional values is much more crucial today than it was earlier centuries
because of the tremendous growth of the state powers. Therefore, restoring
judicial independence and rewarding integrity and ability are urgent tasks.
Lord Hailsham (the former Lord Chancellor of England), put it succinctly: Never
has government possessed more power than it has today. Never has it spent
more money, employed a greater army of people, imposed so many regulations,
passed so many laws, raised so much in taxation, operated in so many spheres
or exercised a wider patronage. This is true indeed as we look into context of
Malaysia today. The government must remember that if respect for judges and
the judicial process is gone and there is no one left to resolve divisive issues, that
could rip the social fabric apart. The judiciary is a safety valve without which no
democratic society can thrive.

Suggestion
1st Indicator
An impartial Judicial Nomination Commission should be appointed to conduct
merit evaluation and to recommend names to the government. The Commission
should consist of the Chief Justice as Chairman, the President of Bar Council, the
Attorney-General and two past superior court judges appointed by the
Conference of Rulers. The inter-changeability of lawyers under the combined
Judicial and Legal Service should be ceased to ensure the separation of powers
and independence of the judiciary.

The list given to YDPA for the nomination should be agreed by both PM and chief
of justice. Thus, the Art 122B will need to be rephrased by adding the power of
YDPA with the advice must by both cabinet and judiciary. Under organs of
judiciary, only the head of judiciary well know about the other senior and junior
judicial capabilities.

2nd Indicator
The selection of tribunal court should be
The selection of tribunal member should base on the seniority of the judge as the
respect to them.

4th Indicator
Action against senior judges should be taken accordingly - threatened by
pressures from within the judicial branch.