CJ Tengku Maimun deserves praise, not condemnation

 

From Shad Saleem Faruqi

Our Chief Justice Tengku Maimun Tuan Mat’s speech on April 8 at the 24th Commonwealth Law Conference in Malta has attracted a variety of comments – some very measured and moderate, others extremely unfair and ill-informed.

Tengku Maimun was invited to speak on the topic of judicial independence and parliamentary sovereignty. By its very nature, the subject was controversial because it required her to inform the audience that in Malaysia, Parliament is not supreme.

Instead, the Federal Constitution is the supreme law of the land. The judiciary has been entrusted with the task of preserving and protecting the constitution and citizens against executive and legislative overreach, if that ever occurs.

The chief justice correctly pointed out that some tensions between Parliament and the executive on one side and the judiciary on the other are inevitable in our constitutional system, as well as others.

She gave a brief history of how judicial independence has worked in Malaysia over the decades – how it suffered a setback in the 80s; and how it has been proudly revived in the last decade. She also reviewed some emerging views on how constitutional supremacy and judicial independence can be strengthened.

One proposal, propounded by the Bar Council and many scholars and noted favourably by the chief justice, is to amend the law to make judicial appointments free of political control by the prime minister.

This is not revolutionary. Many legal systems around the world have adopted this reform. It is noteworthy that even if the prime minister’s power is transferred to the Judicial Appointments Commission (JAC), the scrutiny by the Conference of Rulers and the Yang di-Pertuan Agong under Article 122B will remain in place.

Among those who made measured and moderate comments on her speech were communications minister Fahmi Fadzil, who assured the public that the government was committed to institutional reforms and took note of all views and voices.

A regrettable and ill-advised response came from former law minister Nazri Aziz, who on April 13 insinuated that the chief justice’s Malta speech had shamed the country by alleging that Prime Minister Anwar Ibrahim had interfered with judicial decisions.

This is a serious misinterpretation of the chief justice’s speech. In paras 16 to 17, the chief justice was speaking of “the time before 1988” and the “harrowing events of the 1988 (Tun Salleh) crisis” when the then prime minister was unhappy with many judicial decisions, and judges were intimidated, some suspended and sacked. The constitution was amended in Article 121(1) to emasculate the judiciary.

Nazri described the chief justice as a “penjawat awam” (public servant) and recommended that the Cabinet take serious action to investigate her. The learned Datuk should be informed that under Article 132(3)(c), superior court judges are not part of the public service.

For disciplinary action against a superior court judge, the exceptional provisions of Article 125 are attracted. The last time this drastic provision was invoked was for the removal of Tun Salleh and brother judges. Malaysia was internationally shamed and rebuked. A judicial winter descended on our beloved land, and it took decades for the winter to thaw. Surely such a tragic repeat is not what Nazri is recommending against a highly respected, trailblazer judge.

Nazri’s outburst against Tengku Maimun was based on some serious misconceptions of the theories of constitutional law and good governance. Unless he was misquoted, he seemed to assert that judges should not rely on unofficial proposals for law reforms. This is not correct. Scholarly works are often the heart and soul of a judicial decision.

Nazri asserts that it is not the province of judges to propose law reforms. To him, that is a violation of the separation of powers. In fact, everywhere in the world, judges, in their written judgments, alert Parliament to the flaws in the laws. The separation of powers does not mandate a watertight compartmentalisation but a check and balance. A non-binding judicial proposal to the legislature is not a trespass on the legislature but an indication of research and reflection.

In summation, Tengku Maimun’s Malta speech was a short reflection on the sad decline of constitutionalism in Malaysia in the 80s and its proud re-emergence in the last decade.

She deserves praise, not condemnation, for restoring constitutional law to the pedestal on which it was placed when Malaya began its tryst with destiny.

Her proposal for reforms to JAC is neither new nor unusual. It is noteworthy that the Conference of Rulers on Nov 30, 2022 also proposed the removal of the prime minister’s power to appoint four representatives to the nine-member commission. - FMT

Shad Saleem Faruqi is the Tunku Abdul Rahman chair at Universiti Malaya, a member of the board of trustees at Yayasan Tunku Abdul Rahman, and a visiting senior fellow at Iseas-Yusof Ishak Institute.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.