Chief Justice to Prime Minister: Defend Judicial Independence


November 19, 2012

Chief Justice urges the Prime Minister to defend Judicial Independence

by Hafiz Yatim@http://www.malaysiakini.com

There has to exist a clear separation of powers between the Judiciary and the other two arms of the government in order to uphold the Rule of Law, said Chief Justice Arifin Zakaria. The other branches of government are the Legislature and the Executive.

Justice Arifin (left) said Malaysia’s system is based on the Westminster model, under which he claims there is no clear separation of powers between the executive and legislature.

“But the same could not be said with regard to the other arm of the government that is the Judiciary. In my opinion, there has to exist a clear separation of powers between the Judiciary and the other two arms of the government in order to uphold the Rule of Law,” he said.

He also reminded that the prime minister, as governed under the Judicial Appointment Commission Act (JAC), should ensure the independence of the Judiciary.

“Section 2 of the JAC Act 2009 provides for the upholding the independence of Judiciary where it stipulates the Prime Minister must uphold the continued independence of the Judiciary.

“Furthermore, he (PM) must also defend the need to that independence, ensure the Judiciary have the support necessary to enable them to exercise their functions and ensure the needs for public interest to be properly represented to the Judiciary, the administration of justice related matters,” he said.

“Therefore, it is incumbent on the PM to defend the independence of Judiciary. That is not to say that it wasn’t so in the past, because it has always been the constitutional duty of the PM to do so,” he said.

Justice Arifin said this in his speech in the Integrity 2012 lecture on the topic of ‘Rule of Law and the Judicial System’ today. Also present were former Premier Abdullah Ahmad Badawi and Chief Secretary to the government Dr. Ali Hamsa.

Earlier, a panellist in a forum, namely Law Professor Shad Saleem Faruqi, had described the 1988 judicial crisis which saw the removal of Salleh Abas as Lord President and two other Supreme Court judges by the then-Premier (Tun) Dr Mahathir Mohamad as a black mark in Malaysia’s legal history.

However, Shad recognised and paid tribute to Abdullah for correcting what is wrong and went a step further, in forming the JAC to promote the independence of the Judiciary. The other speaker in the panel earlier was former Bar Council President Ragunath Kesavan.

Public confidence in Rule of Law

Justice Arifin noted that there is clearly an improved public confidence in the rule of law in this country.

“Between January to October 2012, a total of 220 judicial review applications were filed in Kuala Lumpur alone. If anything, this is clearly a positive indication of the public confidence in the rule of law in this country,” he said.

Judicial review cases are a means of controlling administrative action as they are directed to protect the rights of the individual against illegal acts of the administration, providing remedies for wrongs done, ensuring administrative bodies act lawfully and ensuring those bodies perform their public duties, he said.

The Chief Justice also cited several high-profile judicial review cases like the Mohd Hilman Idham and three others vs Universiti Kebangsaan Malaysia case, and the BERSIH chairperson Ambiga Sreenevasan vs the Home Minister and others, where the High Court declared the decision to declare BERSIH unlawful was questionable and tainted with irrationality as examples.

On the Lina Joy case, Justice Arifin said to him, the case does not involve the liberty of the person to practise his or her religion as enshrined in Article 11 of the constitution.

“To me Lina merely raises the issue whether the National Registration Department was right in rejecting her application on the basis that it was not supported by a certificate from the Syariah Court. It does not involve her liberty to practise or profess her religion.

“There is no evidence whatsoever before the court showing that any authority had ever interfered with her choice of religion,” he said.

Habeas corpus cases going down

Arifin said with the repeal of laws which previously provided for detention without trial, this would result in cases of habeas corpus going down.

“In light of the repeal of the Internal Security Act 1959, and the Emergency (Public Order and Prevention of Crime) Ordinance 1969, the number of habeas corpus cases is expected to go down in the near future,” he said.

He noted that as of September 2012, there were a total of 190 habeas corpus applications. The CJ also said at the conference that the Rule of Law is vital in upholding the democratic system of government.

However, he emphasised that it (Rule of Law) must be supported by a judicial system which is independent from any interference and emphasising the significance of the separation of powers.

“In recent years, positive measures have been taken by the government to advance the Rule of Law and the independence of Judiciary through the setting-up of the JAC and the repeal of the infamous preventive detention law.

“The independence of the Judiciary has also been reinforced from within the judiciary. This can only be achieved through such measures as proper selection of judges, judicial training and strict adherence to the code of ethics,” he said.

Justice Arifin also said the elevation of judges under JAC is done based on merit where promotions and seniority are taken into account and this is done via secret ballot.

22 thoughts on “Chief Justice to Prime Minister: Defend Judicial Independence

  1. “Justice Arifin (left) said Malaysia’s system is based on the Westminster model, under which he claims there is no clear separation of powers between the executive and legislature.”

    That’s right. More like overlapping powers. The Prime Minister and colleagues in his Cabinet sit in Parliament, don’t they? In the case of the third pillar of government, the Judicial branch, it is supposed to be independent of the other two branches of government (executive and legislature) but it is not.

    The power of judicial review which is the power of last resort, meant to check any abuse of executive discretion has been legislatively removed in the case of the ISA and such other security legislation. The judges’ use of judicial discretion available under common law to them too has been seriously circumscribed. Mandatory sentences are being meted out to those accused of drug possession and trafficking. The trial judges have no discretion and their hands are tied.

    Judges are not appointed through a transparent process and their background publicly vetted employing standards of strict scrutiny but are handpicked by the head of the executive arm of the government based upon their willingness to bend the law when so required. Those with the courage to resist demands made by their political masters would find their tenure shortened, transferred to far away places few have heard about.

    The judicial branch is anything but independent of the other two branches of government. Westminster model? More like Kampong Attap model of parliamentary democracy.

  2. “To me Lina merely raises the issue whether the National Registration Department was right in rejecting her application on the basis that it was not supported by a certificate from the Syariah Court. It does not involve her liberty to practise or profess her religion”

    Yes, techically speaking the decision in that case does not require answering the issue of religious freedom and her constitutional right under Article 11(1) of the Federal Constitution of 1967.

    Not even obiter dictum??

  3. I can see a tiny light at the end of the tunnel,hopefully it’ll brighten up things as we get closer to GE13, & may I remind the MACC that they are answerable only to the DYMM Sri Paduka Banginda Yang DiPertuan Agong…as are Polis DIRAJA Malaysia, Angkatan Tentera DIRAJA Malaysia & anything with the words DIRAJA,
    tis my laymen understanding,am I right or what???Oouch!!

  4. Opportune time for the judiciary to reassert and reclaim it’s lost independence during TDM’s long reign.For true justice and rule of law to bloom the three limbs of the government has to functioned independently.Going this way is progress for the administration of the country which can garner confidence from the international investing community.That is the only choice!Any other, is towards backwardness for the country.Tun you have taken the first step and together with your fellow brother judges the journey to the destination can be achieved.Try to leave a legacy of glory for the judiciary during your tenure.

  5. What a big joke for the CJ to ask the PM to ensure the independence of the judiciary. Isn’t it the duty of the judges themselves to ensure that they are independent when they are performing their duties as judges?

    For the CJ to make such call,does it mean that our judiciary is not independent all these while, because the PM is at fault ?

    When all the judges took office (CJ included), didn’t they took oath to uphold the law fairly and to carry out their duties sincerely in accordance to the provisions of the constitution, in which they were appointed.

  6. Independence of the Judiciary, being conferred & entrenched by the total system, does not in itself provide an Adequate ‘ safe-guard ‘ for the general masses, something more than that is required. Like what happened to the previous three Chiefs who were mired in the Video scandal pepertrated by a well-known Lawyer.
    Something more ? And what is ‘more ‘ is that it requires the kind of Stature in the Deportment of their probity, conduct & character , almost to the point of being Legendary,,,viz : Tun Suffian Hashim, Tun Salleh Abbas, Tan Sri Harun Hashim, the Hon’ Ong-Brothers & Chan Ming Tat, J. Stature required, hence the late Noble Tun Razak had refused Interference, saying that a highly credible Judiciary, is the ultimate Credibility of the Government….

  7. It is up to the Chief Justice & his judge colleagues under the present conditions now to ensure the independence of the judiciary – they have to look internally to perform their tasks professionally and be seen as independent rather than trying to find excuses from the outside.

  8. It is the Judges tht should protect the Independence of the Judiciary and not allow themselves to be bullied, coerced, into listening to anyone . They must be totally impartial to the point of excluding themselves from being seen with anyone tht may be misconstured in any way. Justice not only needs to be done it must be seen to be done.

  9. No one has mentioned the issue of life time tenure for judges. The idea is to insulate them from political interference and ideologies they feel threaten national interest.

    Over here we have what we call Article III judges and these are federal judges and federal justices of the U.S. Supreme Court who are judges for life. Yes, they work till they drop dead. For example, once appointed by the U.S> President to the Bench of the U.S> Supreme Court, he cannot then dismiss him or her for making a decision that goes against the policy of his administration.

    Malaysia’s Federal Constitution 1957 has nothing like it.

  10. “When all the judges took office (CJ included), didn’t they took oath to uphold the law fairly and to carry out their duties sincerely in accordance to the provisions of the constitution, in which they were appointed” — Steven

    I have never come across a more naive statement than this. How old are you Mr Steven?

    The Old Goat went before the Royal Commission, swore to tell the truth, the whole truth and nothing but the truth. But did this Old Goat tell the truth, the whole truth? He told everything but the truth.

    Judges take their oath of office swearing to do everything and anything as required of them. Then one went boating along the Swan River in Kathy’s neck of the woods with one who talks like a duck, walks like a duck and looks like a duck but is not a duck.

    Wake up, boy !! Smell the coffee and tell me if it is Sumatran coffee from Starbucks or is it kopi korek?

  11. Mr.Bean

    i know exactly what you are trying to say, but the point i was trying to stress is this :

    the CJ shouldn’t look to the PM to ensure the independence of the judiciary, the CJ himself and all his subordinate judges should ensure their own independence by acting without fear or favor but in accordance to the rule of law, and the solemn oath they took in front of the King, failing which they failed the King and the whole country.

    so, it is because of their own failure that the old goat is able to get away with his nonsense and many more, it has nothing to do with the PM. It is my sincere hope the current CJ has the spine and the conscience to do the right thing before it is too late, all of us and the future generations will be the ultimate victims.

    oh, by the way it is Ipoh white coffee from Ipoh Old Town.

    have a nice day and keep healthy, and God bless you.

  12. I got three magic words for you, Steven (you appear to have legal training) without having all that verbosity and that is the “rule of law”.

    But it is the extralegal methods used by their political masters in twisting arms and other parts of the human anatomy that many despte the strict training of their honorable profession have succumbed to. What can we do to stop all the arm twisting and ball polishing that goes on behind the scene and in chambers?

    Kopi korek is white Ipoh coffee? My friend Mr Korek has gone on to be a judge. That’s a slap in the face of all right thinking law abiding citizens and learned justices of the Old School.

  13. And Hussin is the blog’s ball polisher if you must know.

    The call to the head of the executive arm of the government and his surrogates to stop interfering with the work of the judges is legtimate since it focuses on the source of the interference. To put it in anothe way, as CJ he feels confident if left alone to do their job, his guys would rise to the occassion (something we shouldn’t expect Hussin to be able to do even with a helping dose of steroids) and do what is expected of their profession as learned justices.

  14. Look here, Hussin who is still debating in his mind the difference between a carpet muncher and a carpetbagger, Steven does not need your help when it comes to a unanimous decision by so-called learned justices of the Court of Appeal sitting as a panel – a perversion in the course of justice when he sees one – giving a child rapist a slap on the wrist and freeing him because “sex was consensual”.

    These clowns know that in statutory rape cases consent is irrelevant. In any other jurisdiction no bowling ace who balled a minor would be given probation. He would be given a jail sentence of not less than 18 years (and the possibility of release in 12) to reflect the heniousness of the crime and society’s abhorence. This smacks of outside interference and is a sentence that cannot stand the weakest of legal scrutiny – and should not be allowed to stand.

    Hussin would no doubt search for some justification in view of the circumstances as his political masters would want him to.

  15. Well, Steven is correct that the CJ should not look to the PM to seek independence of the judiciary – the PM has nothing to do with it. The CJ & his fellow judges themselves must ensure the judiciary is independent and be seen to be independent. The courts are their courts and if they condone the so-called interference, they themselves are to be blamed. They should not have any valid reasons to complain.

  16. In the case of Malaysia, with an overly dominating executive exercising extra-constitutional and extra-legal powers not vested in the country’s Constitution, the head of the executive arm of the government i.e. the Prime Minister, has exercised a direct role in the appointment of top judge and all judges – unless you believe what the Old Goat has been saying his role was when he was Prime Minister. He says he consults with the Bar Council and other senior judges and according to him it is the Agong who makes the appointment. Why am I not surprised that you Hussin believe in all that shit?? The Old Goat says ‘consults’ means just that. He doesn’t have to follow their views. And the Agong makes the choice?? Gimme a break!

    Then there is the usual arm twisting that goes on behind the scene in high profile cases, threats of promotions being bypassed, of transfers, of early retiremement etc. Such threats covert or overt, direct or otherwise, are delivered of course by his surrogates. The Prime Minister is not that dumb as to want to do it himself..

    That’s what the CJ is referring to. You’re unable to see through the use of polite language in legal circles to the message that is being conveyed. The message is “Quit interfering in our jobs”.

  17. Hope some smart people are not suggesting that our CJ and his judge colleagues are spine-less without any strength of integrity or principles to be prone to any “arm-twisting or threats” by any from outside the judiciary. If it were true, who is to be blamed? In their courts everything and everybody is subject to their rulings but if they were to soil their courts by alllowing the so-called interference, can anyone else be blamed? They have to look internally first and foremost to remedy any perceived ills they think they might be suffering. No unnecessary spinning is required to justify this situation otherwise.

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