Upholding Judiciary Independence through the Federal Constitution

Articles 121 to 131A of Malaysia Federal Constitution provide provision for our judiciary. The phrase “there shall be in clause (1) of Art. 121 replaced the phrase “subject to Clause (2) the judicial power of the Federation shall be vested in" by the Constitution (Amendment) Act 1988.

In Datuk Yap Peng [1] case, Dato Yap Peng was charged with criminal breach of trust in the Sessions Court. When his case was mentioned again the Deputy Public Prosecutor tendered a certificate issued by the Public Prosecutor under s. 418A of the Criminal Procedure Code requiring the case be removed to the High Court. When Criminal Procedure Code requiring the case be removed to the High Court. When he was charged in the high court, he argued that the transfer of his case was against the provisions of Article 121(1) of the Federal Constitution. On appeal to the Supreme Court, The Court agreed with the contention. Subsequently, the Constitution was amended as stated above by inserting also Article 145 (3A) to provide express power to the Public Prosecutor to transfer cases. [2] It should be noted that Judicial Crisis 1988 happen right before the amendment.

“Judicial power may be broadly defined as the power to examine the questions submitted for determination with a view to the pronouncement of an authoritative decision as to rights and liabilities of one or more parties. It is virtually impossible to formulate a wholly exhaustive conceptual definition of that term, whether inclusive or exclusive, and as Windeyer J. observed in the High Court of Australia in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] [3] : “ The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis."

In Liyanage v The Queen [4] , Privy council heard an appeal from Ceylon where eleven appellants were each convicted of three offences in connection to an abortive coup d’état. The appellant were tried by tree judges of the Supreme Court sitting without a jury, unlike normal criminal proceeding. They were tried under a legislation passed especially to deal with the trial of those involved in the abortive coup. The legislation affected the mode of trial, the admissibility of evidence and the sentences. It was argued that the legislation was invalid because the legislation amounted to a direction to convict the appellants and ‘thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with the judicial power’ with is contrary to the concept of separation of power’.

“Although no express mention is made of vesting in the judicature the judicial power which it already had and was wielding in its daily process under the Courts Ordinance, there is provision under Part 6 for the appointment of judges by a Judicial Service Commission which shall not contain a member of either House but shall not be removable except by the Governor-General on an address of both Houses. These provisions manifest an intention to secure in the judiciary a freedom from political legislative an executive control. They are wholly appropriate in a constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by the executive or the legislature."

The case of Hinds v The Queen [5] is an appeal to the Privy Council from Jamaica. In this case the Gun Court Act 1974 established a new court call the Gun Court. The new court was conferred jurisdiction to try certain categories of offenders for criminal offences. It was argued that the Act purports to confer upon a court consisting persons qualified and appointed as resident magistrates a jurisdiction which under the Constitution is exercisable only by a person qualified and appointed as judge of the Supreme Court of Jamaica. Looking at the Constitution of Jamaica regarding the appointment and removal of the higher judiciary and lower judiciary, the Privy Council observed,

“The manifest intention of these provisions is that all those who hold any salaried judicial office in Jamaica shall be appointed on the recommendation of the Judicial Service Commission and that their judicial functions shall be assured by granting them such degree of security of tenure appropriate to those judges who exercise the jurisdiction of the higher judiciary and that appropriate to those judges who exercise the jurisdiction of the lower judiciary."

“Their Lordships therefore are unable to accept… Parliament by ordinary law [may] vest in a new court composed of members of the lower judiciary a jurisdiction which forms a significant part of the unlimited civil, criminal or supervisory jurisdiction that is characteristic of ‘the Supreme Court’ and was exercised by the Supreme court of Jamaica at the time when the Constitution came into force, at any rate where such vesting is accompanied by ancillary provisions,… which would have the consequence that all case falling within the jurisdiction of the new court would in practice be heard and determined by it instead of by a court composed of judges of the Supreme Court."

It is important to vest judicial power in the judiciary to ensure that separation of powers is maintained and the independence of judiciary is protected. However, it is interesting to note that in Art. 121 (1A) has establish a new court other than the ordinary court. If we apply the principle established in the Hinds v The Queen, that a new court is establish to conferred jurisdiction to trial cases that fall under Islamic law. Therefore, is it contradicting the principle in Hinds case which mentioned about “parliament by ordinary law [may] vest in a new court."

Post Constitution (Amendment) Act 1988

In Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah [1998] [6] , the Court of Appeal referred to Liyanage and Hinds case where the Privy Council found that judicial power was vested in the courts impliedly. The court concluded,

“In saying this, we do not overlook the amendment to Article 121(1) of the Federal Constitution whereby the words ‘judicial power of the Federation’ was deleted on 10 June 1988 by Act A704. However, in accordance with well-established principles of constitutional interpretation, the deletion does not have the effect of taking away the judicial power from the High Courts…"

In Datuk Seri S Samy Vellu v S Nadarajah [2002] [7] , Abdul Wahab Patail J held,

“I am certain the learned judge did not intend the meaning of the sentence as it reads at first glance, i.e., that the amendment did not have any effect at all. If the Judicial power is derived from Article 121, the amendment cannot fail to have the effect of removing from the Article the basis of the judicial power, and to move it to be found from federal law, instead of from the Constitution. What the learned judge sough to say, in context, is that the principle of judicial power being vested in the judiciary is so held in other jurisdictions where the Constitution themselves did not state."

“It would appear… Article 121 neither bars persons, as distinct from courts, other than the executive from exercising executive functions, nor is judicial authority vested and reserved in the courts to the exclusion of all else."

In Megat Najmuddin v Bank Bumiputra (M) Bhd [2002] [8] , Mokhtar Abullah observed,

“Where there is a clear case of injustice being committed, the Federal Court, as the apex court in the land, cannot stand idly by and do nothing. It cannot and should not shirk from its responsibility of preventing injustice in appropriate cases. It must deal with it. In this regard, the Federal Court has been conferred with inherent powers inder r. 137of the Rules of the Federal Court 1995 (‘the RFC’). This has been reiterated very recently by the Federal Court in Chia Yan Teck & Anor v Ng Swee Keat & Anor (Civil Appeal No 02-03-98(B)), I take view that the Federal Court also has the inherent jurisdiction under the common law to deal with cases with a view to preventing injustices in limited circumstances. This is clearly in line with s. 3(1)(a) of the Civil Law Act 1956, which was promulgated in accordance with cl. (C) of art. 121 (2) of the constitution which confers on the Federal Court “such other jurisdiction as may be conferred by or under federal law."

“Rule 137 of the Rules clearly gives us the inherent power to hear any application or make nay order as may be necessary to prevent injustice,"

The Introduction of Syariah Court In Constitution (Amendment) Act 1988

In the case Mohamed Habibullah b Mahmood v Faridah bte Dato Talib [1992] [9] , Harun Hashim SCJ explained the intention of Article 121(1A),

“It is obvious that the intension of Parliament by Article 121(1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court: Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Balai Polis Daerah, Bukit Meetajam & Anor.. Indeed, muslims in this coutry are governed by Islamic personal and family laws which have been in existence since the coming of Islam to this country in the 15th century. Such laws have been aadministered not only by the Syariah Courts but also by the civil courts. What Art. 121(1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic Laws. In other words, Article 121 (1A) is a provision to prevent conflicting jurisdictions between the civil courts and the Syariah Courts."

In Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] [10] , the judge observe that,

“It is a general rule of construction that if the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication and the court may draw inferences or supply the obvious omissions."

WHY JUDICIARY MUST BE INDEPENDENT FROM THE EXECUTIVE AND LEGISLATIVE?

In the 18th century, from Montesquieu’s The Spirit of Laws [11] , he stated about the importance of an independent judiciary:

"Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."

Aristotle once mentioned in The Politics that,

“There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element. [12] "

Judiciary is that branch of the state which adjudicates upon conflicts between state institutions, between state and individual, and between individuals. It is the feature of judicial independence which is of prime importance both in relation to government according to law and in the protection of liberty of the citizen against the executive. In doing so, Judiciary must be independent from both parliament and the executive.

In the case of Public Prosecutor v Datuk Harun bin Haji Idris[1976] [13] , Abdoolcader J said that,

“The court stands as arbiter in holding the balance between individuals and between the state and the individual and will not have the slightest hesitation to condemn or strike down any statutory shelter for bureaucratic discrimination, any legislative refuge for the exercise of naked arbitrary power in violation of any of the provisions of the Constitution and equally any executive action purported to be made thereunder."

Lord Browne-Wilkinson stated the meaning and purpose of judicial independence in 1988 [14] 

"If you were to ask a thinking man whether he regarded the independence of the judiciary as important, he would almost certainly answer 'Yes.' If asked to explain what he meant by the words, he would probably say that a judge should be free of any pressure from the government or anyone else as to how to decide any particular case; that, for that reason, a judge's salary is not dependent on executive decision but is paid out of the Consolidated Fund and he cannot be removed save by resolution of both Houses of Parliament. If pressed further and asked why judicial independence was important, our thinking man might at first hesitate. But in due course the answer would be along the lines, 'the courts are there to protect the rights of the individual as against the state by ensuring that executive powers are lawfully exercised.'"

Lord Justice Henry Brooke defined judicial independence in his article on Judicial Independence and Its History in England and Wales [15] as:

“the ability of a judicial officer to conduct their work free from improper pressure by executive government, by litigants and by particular pressure groups. The fundamental concept of judicial independence came into being in England in 1701 with the enactment of the Act of Settlement. This statute formally recognised the principles of security of judicial tenure (holding office during good behaviour) and the need for appropriate mechanisms to exist for a judge’s removal (by address by both houses of parliament)."

A former Australian Supreme Court Justice, Sir Richard McGarvie also explained on the concept of judicial independence [16] 

"It is vital to identify clearly what in this context is meant by judicial independence. It refers only to independence in making decisions in court cases between litigants. It means only that in making such decisions a judge must be individually independent in the sense of being free of pressures which would tend to influence a judge to reach a decision in a case other than that which is indicated by intellect and conscience based on a genuine assessment of the evidence and an honest application of the law."

In Malaysia, the former Lord President of the Federal Court, Tun Mohamed Suffian Hashim stated on judicial independence:

“Judges are given independence not to bolster their ego but in order to allow them to serve members of the public whose disputes with each other or with the Government should be determined impartially by persons who are free to decide in accordance with the law and their conscience"

It is to be clearly understood that if the judiciary is to be independent, no other organs will have the ability to influence the judiciary in its structure and powers

Securing of Judicial Independence in Reality in Malaysia

The Federal Constitution of Malaysia provides provisions to secure judicial independence from the control and interference of the executive and the legislature.

Appointment of Judicial commissioner

In Article 121AB, 122B and 123 provide provision on the appointment of judges and the minimum prerequisite for the appointment of judges in the court of higher hierarchy.

In Article 122B(1), (2), the Judges of the Federal Court, the court of Appeal and both of the High Courts are appointed by Yang di-Pertuan Agong, acting on the Advice of the Prime Minister, after consulting the Conference of Rulers and the Chief Justice.

In Article 122B(4), the Prime Minister require to consult the Chief Justice and the Chief Judges on appointments to the Federal Court; the President of the Court of Appeal on appointments to the Court of Appeal; and the Chief Judge of a high Court on appointments to that High Court.

In Article 122B(3), Prime Minister must consult the Chief Judges of both High Courts on appointment of a Chief Judge of High Court; in the appointment of a Chief Judge of the High Court of Sabah and Sarawak, he must consult the Chief Minister of Sabah and Sarawak.

In the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor [2000] [17] made it clear that the actual appointing authority is the Prime Minister. The Yang di-Pertuan Agong could not but follow the decision made by prime minister. The Court observed,

“The Yang di-Pertuan Agong must act upon the advice of the Prime Minister. The Advice envisaged by Art. 40(1A) is the direct advice given by the recommender and not advice obtained after consultation. So, in the context of Article 122B(1) of the Constitution, where the Prime Minister has advised that a person be appointed a judge and if the Conference of Rulers does not agree or withholds its views or delays the giving of its advice with or without reasons, legally the Prime Minister can insist that the appointment be proceeded with."

Therefore, as in many other common-law jurisdictions, including the United Kingdom, appointments are placed in the hands of the executive. The Conference of Rulers and the Yang di-Pertuan Agong play little practical part in the decisions. Judicial appointments are discussed by the Conference, but the Yang di-Pertuan Agong acts on advice.

In Article 123 restricts appointment to a citizen who has for the preceding ten years been an advocate of one of the high Courts or a member of the judicial and legal service of the Federation or of the legal service of a state, or sometimes one and sometimes another.

In Article 122C provisioned that transfer of a Judge to a High Court may only be done on the recommendation of the Chief Justice after consultation with the Chief Judges.

In conclusion, it is understood here that even though the appointment of the judges requires the advice of the Prime Minister who is part of the executive, this must not be seen as interference on the judiciary as he cannot advise the Yang di-Pertuan Agong to appoint anyone to his liking. There are strict rules such as the Prime Minister must consult the Conference of Rulers and the Chief Justice and only judges who are qualified can be appointed.

Tenure of office and Remuneration of judges of Federal Court

In Article 125(6), judges’ salaries are charged on the Consolidated Fund.

In Article 125(7), judges’ salaries and his other terms of office, including pension rights, may not be altered to his disadvantage after his appointment.

In Article 127, the conduct of a judge may only be discussed in Parliament on a substantive motion supported by one quarter of the total number of members, and not at all in the State Legislative Assemblies.

In Article 125(3A) [18] , it gives power to the Yang di-Pertuan Agong, on the recommendation of the Chief Justice, the President of the Court of Appeal and the Chief Judges, after consulting the Prime Minister, to prescribe a Code of Ethics which shall be observed by every judge of the Federal Court as prescribed in Article 125(9). Breach of this code may lead to dismissal under Art.125

The Judges’ Code of Ethics 2008 [19] lay down nine principles,

Subordinate his judicial duties to his private interests;

Bring his private interest into conflict with his judicial duties;

Conduct himself in any manner likely to cause a reasonable suspicion that he has allowed his private interests into conflict with his judicial duties so as to impair his usefulness as a judge or that he has used his judicial position for his personal advantage;

Conduct himself dishonestly or in such a manner as to bring the judiciary into disrepute or bring discredit thereto;

Lack efficiency or industry;

Inordinately and without reasonable explanation delay in the disposal of cases, the delivery of decisions and the writing of grounds of judgment;

Refuse to obey a proper administrative order or refuse to comply with any statutory directions;

Absent himself from court during office hours without reasonable excuse or without prior permission of the Chief Justice, the President of the Court of Appeal, or the Chief judge, as the case maybe; or

Be a member of any political party or participate in any political activity.

From this, it is understood that the salaries of judges are from the Consolidated Fund and the executive and the legislature have no power to affect the salaries of the judges and thus their performances. It is also understood that a judge cannot be dismissed from duty unless from a distinct breach of conduct from the Judges’ Code of Ethics 2008 and the executive nor the legislature have the power to dismiss any judge to their liking.

Exercise of power by judges & power to punish for contempt

In the case of MBF Holdings Bhd & Anor v Houng Hai Kong & Ors[1993] [20] , the court observed 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."

Contempt by Publication

In the case of Attorney General v Times Newspaper Ltd [1974] [21] , judge observe that,

“My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behavior or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits."

Sub judice rule contempt of publication

Prohibits the discussion on pending cases, generally cases being heard by the court. The rationale of this restriction is to prevent interference and unwarranted influence of juries and judges in deciding cases.

Scandalizing the court

In the case of Griffin (1989) [22] , Mustill LJ observed that,

“In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor… omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the judge should choose to adopt it only in cases of real need."

Restriction on Parliamentary discussion of conduct of judge

In Raja Segaran a/l S Krishnan v Bar Council Malaysia & Ors [2004] [23] , Kamalanathan Ratnam J after referring to Article 125(3) and Article 127 and said,

“It seems to me that Parliament, although supreme, is unable to discuss the conduct of a judge unless a provision to Art. 127 applies…Whilst on the need to protect and uphold the independence of the judiciary, it must be seen to be manifest that no external pressure is exerter against the judiciary either from the executive or from any other sources including the Bar."

In an Indian case of C Ravichandran Iyer v Justice AM Bhattacharjee & Ors[1995] [24] ,

“The judiciary stands between the citizens and the State as a bulwark against executive excesses and misuse or abuse of power by the executive. It is therefore, absolutely essential that the judiciary must be free from executive pressure or influence which has been secured by making elaborate provisions in the Constitution with details. The independence of judiciary is not limited only to the independence from the executive pressure or influence; it is a wider concept which takes within its sweep independence from any other pressure and prejudices. It has many dimensions, viz., fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong.

Jurisdiction of Federal Court

Art. 128 provide provision on the jurisdiction of the Federal Court.

In Art 128(1), Federal Court has jurisdiction over disputes on any other question between States or between the Federation and a state. The Federal court also has jurisdiction over the federal and state legislative power asset out in Schedule 9 of the constitution, for example in the case of Mamat bin Daud & Ors v Government of Malaysia [1986] [25] , Mohamed Azmi SCJ held that,

“For the applicants to succeed, they must satisfy the court firstly that leave is necessary under Article 4(4) and secondly, that they have an arguable case in that the application is not frivolous. In this particular motion, not only is the impugned law a post-Merdeka Legislation but also the intended challenge is on the competency of Parliament to enact the legislation and it is not merely grounded on the impugned law being inconsistent with the Constitution. In other words, the validity of the legislation is to be challenged on the ground that it deals with a matter with respect to which Parliament has no power to make law. As such leaveis required under Art. 4(4)…In the circumstances I am of the viewthat the present application is not frivolous and the applicants should be allowed to canvass their case before the full court on the constitutionality and validity of the new section…" [26] 

In Art 128 (3), Federal Court has the appellate jurisdiction to hear appeals from the Court of Appeal. [27] In the case of Megat Najmuddin bin Dato seri (Dr) Megat Khas v bank bumiputra (M) Bhd [2002], the Mokhtar Abdullah FCJ observed,

“In my view, Article 121(2) of the constitution is a general provision relating to the jurisdiction of the Federal Court. It is an empowering provision which states that the Federal Court shall have jurisdiction to determine appeals from decisions of the Court of Appeal and the High Court. It is pertinent to note the conspicuous absence of the word ‘all’ or ‘any’ preceding the word ‘decisions’ in the provision. If it was the intention of Parliament to confer jurisdiction on the Federal Court to hear appeals from all decisions of the Court of Appeal, the word ‘all’ or ‘any’ would have been included therein. The exclusion of those words, in my view, was clearly deliberated. It was intended that not all decisions are appealable. Furthermore, whilst Article 121(2) of the constitution is of general importance on the jurisdiction of the Federal Court, Article 128(3) thereof is more specific. It states:

‘The jurisdiction of the Federal Court to determine appeals from the Court of Appeal, a High Court or a judge thereof shall be such as may be provided by federal law.’

Quite clearly, the two Articles have to be read in tandem. There can be no dispute that the statute conferring jurisdiction on the Federal Court concerning appeals in civil matters is the [court of Judicature Act 1964].

In Article 128(2), Federal court has referential Jurisdiction. In any proceedings before another court a question arises as to the effect of any provision of the Constitution, to determine the question and remit the case to the other court to be disposed of in accordance with the determination. The federal Court has been at pains to point out that, although constitutional issues can be referred to it by lower court, decided and thenremitted to the lower court, the lower courts should decide issues of constitutionality themselves in the first instance.

In Art 130, Federal court has advisory jurisdiction. Art. 130 provide that,

“The Yang Dipertuan Agong may refer to the Federal Court for its opinion any question as tot the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it."

In the case of Government of Malaysia v Government of the State of Kelantan [1968] [28] has referred to Article 130.