Looking Beyond The Storm In The Teacup

By Lim Chee Wee, President, Malaysian Bar

The storm in the teacup over the Prime Minister having tea with judges of the Malaysian Judiciary at their recently-concluded Judges Conference risks diverting attention away from more fundamental issues regarding the administration of justice in Malaysia.

From any perspective, the head of the executive branch of government cannot be the head of the judicial branch in a properly functioning democracy. It is an error to say that the Prime Minister is the head of the Judiciary for administrative purposes. The doctrine of separation of powers between the three branches of government, namely, the Judiciary, Legislature and Executive, is essential to, and inherent in, a modern democracy that professes and abides by the rule of law.

However, the Federal Court decided by a majority in PP v Kok Wah Kuan [2008] 1 MLJ 1 that, "The doctrine is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution." The judgment, written by then-President of the Court of Appeal Abdul Hamid Mohamad, goes on to say, "The extent of the powers of the courts depends on what is provided in the Constitution. In the case of the two High Courts, the Constitution provides that they ‘shall have such jurisdiction and powers as may be conferred by or under federal law.’ Therefore, reference must be made to the federal law to know the jurisdiction and powers of the High Courts."

Contrast this with the dissenting judgment of Richard Malanjum, Chief Judge of Sabah and Sarawak, who said, "Accepting the proposition that with the amendment to art 121(1) of the Federal Constitution the courts in Malaysia can only function in accordance with what has been assigned to them by federal laws, would be contrary to the democratic system of government wherein the courts form the third branch of the government and function to ensure that there is ‘check and balance’ in the system including the crucial duty to dispense justice according to law." His Lordship went on to say, "The amendment to art 121(1) should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of the Federal Constitution. The amendment did not cause the courts to become servile agents of a Federal Act of Parliament and to only perform mechanically any command or bidding of a federal law."

International bodies, such as the United Nations Human Rights Council’s Working Group on Arbitrary Detention, have questioned the independence of the judiciary in Malaysia in a situation where there is no clearly accepted principle of separation of powers. They have expressed concern at the current state of affairs.

It is therefore encouraging to read the report in The New Straits Times of 8 Sept 2011 quoting the Prime Minister, Najib Razak, as saying in his speech during his visit to the Palace of Justice that, "My administration is committed to an independent judiciary, which is an essential ingredient in nation building . . . The relationship must not only be proper, it must be seen to be proper." The report further stated that the Chief Justice, Zaki Tun Azmi, had emphasised that "…the judiciary was [sic] an important organ in the separation of powers and each branch – executive, judiciary and legislature – must ensure that respect and non-interference existed".

It is important to differentiate between judicial reforms that make the administrative processes efficient on the one hand, and reforms to overcome problems, perceived or otherwise, with judicial integrity. Some may hold the view that it is not objectionable per se for the respective heads of the three branches of government to have official meetings or to socialise occasionally. This may very well be true where the respective institutions are strong and independent, and are perceived to be so, thereby enjoying public confidence. Public disquiet over a tea party may be seen as an indication that our institutions do not yet enjoy the fullest confidence.

It is therefore timely and imperative that the recommendations in the report of the Royal Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges dated 9 May 2008 be immediately acted upon, and given effect to, by the government. The report recommended, inter alia, that article 121(1) of the Federal Constitution be re-amended to its original form "so that the Judiciary is free once again to live up to the highest expectations of society for all time. There will be no room for concern on the judicial power issue." It quotes Professor Emeritus Dr Shad Saleem Faruqi as saying, "The amendment to article 121(1) has created the wrong perception that the Malaysian Executive wishes to silence the Judiciary. All Judges feel humiliated. Some have accepted their truncated role as mere agents of Parliament and not as independent pillars of the Federal Constitution. Others insist that their review powers are intact. There is division within the ranks."

It is now incumbent on the Prime Minister and the government to put powder and shot in the former’s declared commitment to an independent judiciary, and assertion that the relationship between the various branches of government must not only be proper, but must also be seen to be so. The Malaysian Bar likewise looks to the Judiciary to strengthen its independence, and to work to return the doctrine of separation of powers to its rightful place within the framework of the Federal Constitution and Malaysian law.