Judicial independence and justice

Lim Sue Goan
The Malaysian Insider
September 09, 2011

SEPT 9 — Prime Minister Datuk Seri Najib Razak’s recent visit to the Palace of Justice has triggered a dispute as some claimed that the visit could jeopardise the independence of the judiciary. However, I am more interested in the remarks made by retiring Chief Justice Tun Zaki Azmi.

He said that the government had allocated RM130 million to upgrade court facilities and it was normal for the prime minister to see how the money was spent. Also, the more people the more transparent it was and there was nothing to be kept in the dark. It would not affect judges’ independent judgment.

The judiciary needs money to operate and the bill is paid by the government. Then how could we be sure that the judiciary would not lose its independence for government funding?

Judiciary independence is a universal value. According to the Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan from August 26 to September 6, 1985, “it is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions”.

Most countries and regions such as the US, Germany, Japan, Hong Kong, Macao and Taiwan separated the expenses of the judiciary and included it in the central budget. Many countries also have a court expense budget which is planned by a court expense budget committee formed by courts or judges. There are also judges who participate in a court expense budget team and the Finance Ministry has no right to delete or seize a court expense budget and funding.

In China, the judiciary is managed by local governments and naturally, the judiciary tends to safeguard the interests of local authorities, resulting in a miscarriage of justice and public resentment.

Most democratic countries and regions are very strict in the appointment of judges. According to the US Constitution, federal judges are appointed by the president of the US and confirmed by a simple majority vote of the Senate.

According to the Constitutional Reform Act 2005 of the United Kingdom, the Judicial Appointments Commission is responsible for the appointment of judges. The independent commission is formed by multi-commissioners and chaired by a lay member.

According to the Hong Kong Basic Law, judges are appointed by the chief executive on the recommendation of the Judicial Officers Recommendation Commission. The commission is an independent statutory body composed of the secretary for justice, judges, persons from the legal profession and eminent persons from other sectors.

Many countries and regions take great pains to ensure judicial independence and maintain the prestige of the judiciary as well as the democratic institution.

In Malaysia, however, the feature of independence seems to have been gradually neglected. Judges are appointed without going through Parliament and after the 1988 judicial crisis, the executive has overridden the judiciary. Judicial prestige has also further declined after the Lingam video clip and other judicial scandals.

The country must recover the long-lost independence, including the independence of the Attorney-General’s Chambers, the Election Commission and the Malaysian Anti-Corruption Commission, as only independence can defend social justice. — mysinchew.com