Earlier this week, the Federal Court was set to deliver its decision on whether the tenure of Raus and Makinudin as the Chief Justice and President of the Court of Appeal respectively were validly extended. The Federal Court, however, declined to answer the questions posed on the ground that the questions are now academic given that both Raus and Makinudin had since resigned from their respective positions.

This is not the first time the highest Court of the land has declined on deciding questions of law concerning their peers. In 2005, the Malaysian Bar sought to convene an EGM to consider a resolution concerning the appointment of a Royal Commission of Inquiry to investigate into instances of controversy that have undermined confidence in the Malaysian Judiciary (in particular, the notorious conduct of Eusoff Chin). The Federal Court dismissed the leave application, holding that to allow an open discussion on the conduct of His Majesty’s Judges could amount to questioning the wisdom of the King in his selection.

The Judiciary has come a long way since the constitutional crisis in 1988. With the dauntless decision of the Federal Court in Semenyih Jaya and the dawn of #MalaysiaBaharu (click here to see why “baharu” instead of “baru“), spirits were high to introduce institutional reform within the Judiciary. First, we have the appointment of Richard Malanjum as the first Sarawakian CJ. We then have Mohd Hishamudin Yunus, Mah Weng Kwai, Linton Albert and Shad Saleem Faruqi appointed to sit as eminent persons in the Judicial Appointment Commission (“JAC“). These appointments were very much applauded. In fact, they speak volume of the new Government’s commitment to bring about a reform within the Judiciary. However, we are in a race against time to set things straight as we count down to the retirement of many of the Federal Court judges by the end of this year.

Separation of powers

A democracy is made up of three organs – the Legislature (Parliament), the Executive (Government) and the Judiciary (Judges). The three organs are equal partners in a working democracy.

The law shapes how we live our lives. Every 5 years, we pick our own representatives to sit in Parliament so that they can make laws which address our concerns. Then, it is up to the Government to execute those laws. However, the Government is made up of ordinary human beings like us and human beings are not flawless, we make mistakes, so will the Government. So who do we go to when we suffered from mistakes made by the Government? The Judges.

Do you want a Judge who will favour the Government? Or do you want a Judge who calls a spade a spade?

Therefore, the separation of powers is an imperative doctrine for a democracy to function. It means that the three organs work together in their respective capacities without the you-help-me-I-help-you nonsense.

[88]     The Judiciary is thus entrusted with keeping every organ and institution of the State within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers.
 
[89]     This is essentially the basis upon which rests the edifice of judicial power.
 
[90]     The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.

Zainun Ali FCJ in Semenyih Jaya

Justice must be seen to be done

Do you want a Judge whom you have heard rumors about him/her being a crony to the Government? Or do you want a Judge with clean records? The idea of justice is never considered to be achieved just because you win your case. Justice is achieved when a losing party walks out of the Court knowing that he has had a fair hearing.

For the moment it is sufficient to note that the effective resolution of controversies which call for the exercise of the judicial power of the Commonwealth depends on public confidence in the courts in which that power is vested. And public confidence depends on two things. It depends on the courts acting in accordance with the judicial process. More precisely, it depends on their acting openly, impartially and in accordance with fair and proper procedures for the purpose of determining the matter in issue by ascertaining the facts and the law and applying the law as it is to the facts as they are. And, just as importantly, it depends on the reputation of the courts for acting in accordance with that process.
 
So critical is the judicial process to the exercise of judicial power that it forms part of the definition of that power. Thus, judicial power is not simply a power to settle justiciable controversies, but a power which must be and must be seen to be exercised in accordance with the judicial process.

Gaudron J in Wilson v The Minister for Aboriginal and Torres Strait Islander Affairs

How are judges appointed in Malaysia?

When Malaya gained independence in 1957, the Constitution was framed in such a manner that judges were appointed by the YDPA in his discretion after consulting the Conference of Rulers, considering the advice of the Prime Minister, and act on the recommendation of the Judicial and Legal Service Commission.

In 1960, the discretion was taken away from the YDPA and the Judicial and Legal Service Commission was abolished by way of an amendment to the Constitution. Previously, it was up to the YDPA to consider the advice of the Prime Minister. The YDPA now had to act on the advice of the Prime Minister, after consulting the Conference of Rulers and considering the advice of the CJ.

Why is this a problem? Have you ever experience a sense of guilt in rejecting someone who has been treating you well? Have you ever done anything for anyone out of indebtedness though unwillingly? For all you know, judges are ordinary human beings like us too.

The common sociopsychological experience that the incumbent in an office remains indebted to those responsible for his designation holds specific dangers in the case of the judicial function. In particular, if the designation has been influenced by political considerations, the beneficiary is exposed to the human temptation to repay his debt by a pliable conduct of his office.

Karl Loewenstein

Old wine in a new bottle

In 2007, the release of the VK Lingam video clip sent shock waves throughout Malaysia. A Royal Commission of Inquiry was established to investigate into the video clip. Upon completion of the investigation, the Royal Commission found evidence that the then Prime Minister (Dr M) and several top judges were involved in the fixing of judicial appointments and judicial decisions. To put it bluntly, the Executive and the Judiciary were pretty much scratching each other’s back in blatant disregard to the doctrine of separation of powers.

The call for the establishment of JAC started as far back as 2005 with the Malaysian Bar being the leading voice. The video clip and the report of the Royal Commission placed the Judiciary under spotlight such that the establishment of JAC became exigent. The JAC Act 2009 came into being.

Unfortunately, the JAC Act 2009, though ostensibly well-intended, was merely a lip service. Provisions such as sections 5 (Prime Minister to appoint 5 out of 9 members of the JAC), 7 (Prime Minister to determine the allowances of members of the JAC), 9 (Prime Minister to revoke appointment without assigning any reason), 19 (Prime Minister to appoint a Secretary to the JAC), 28 (Prime Minister to decide whether to accept recommendations made by JAC), 30 (Prime Minister empowered to make regulations pertaining to the selection process) and 37 (within the first two years of coming into force of the JAC Act 2009, the Prime Minister was empowered to amend the JAC Act 2009 as and when he thought necessary or expedient) are paradoxical to the underlying purpose and rationale of the JAC Act 2009.

If not now, then when?

As many of our Federal Court Judges set to clock out by the end of this year, it is imperative that we take this opportunity to set things straight. Why? Because we want our Judges to be able to speak their mind freely and apply the law to the facts without any fear or favour. We want our Judges to be able to tell off the Government (or anyone) when they did a mistake. We want our Judges to be able to dissent courageously as and when they disagree with the rest of their peers on the bench. We want our Judges to bear in mind their responsibility to balance the need to apply the law objectively in a manner intended by its drafters against the need to administer the subjective notion of justice. We want our Judges to always remember that they are the guardians of the Constitution and not of the Government.

Until and unless we have an independent JAC and a Judiciary free of political patronage, we will never be able to experience the truest sense of justice.

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