Judiciary

            Basically, judiciary refers to the system of courts in the country. Its main function is to interpret and apply the law. The judiciary is also responsible to uphold the constitution, by reviewing any Acts of Parliament that is against the constitution. It is also important in upholding citizen’s rights and liberties. The judiciary also upholds the concept of the rule of law and separation of powers.

Independence

- Lord Browne-Wilkinson:‘A Judge should be free from any pressure from the Government or anyone else as to how to decide any particular case’

- Tun Mohamed Suffian: ‘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 basically means the ability of a Judge to decide cases on their merits, free of any pressure

Neutrality

- it means the judges’ ability to make decisions without any favour for either parties in all aspects including race, colour, sex, political ideologies, religion and etc.

- There are a few methods to instill neutrality into judges, for e.g. send judges for courses, appoint judges from a bigger cross-section of the community, establish a special judicial appointments commission and etc. However, in reality, none of these will actually be effective.

Protection of Judicial Independence and Neutrality through the FC

- Judicial appointments. Although the appointments of Judges are placed in the hands of the Executive, its decision are deeply informed by judicial advice as well as constitutional and diplomatic considerations. Under Art.123, only those with appropriate legal training and experience can be appointed.

- Security of tenure. A judge can only be removed by the YDPA on grounds specified under Art.125(3) for either a breach of the judge’s code of ethics or inability due to infirmity of body, mind or other cause, to discharge his functions. A special tribunal must recommend the removal.

- Guarantee of remuneration. Remuneration of judges is to be charged directly from the Consolidated Fund. Under Art.125(7), it is payable every year without the need for parliamentary debate.

- Prohibition of public discussion on Judges’ conduct. Discussion is only allowed if at least a quarter of the members of the House enter a motion. Discussion is prohibited at state legislative assemblies. Art.126 and the Court of Judicature Act give Judges’ power to punish for contempt of court.

- Guarantees against packing. The FC specifies the number of judges that can be appointed to each court to prevent the Executive from overruling unfavourable precedents by packing the courts with judges sharing similar political views.

Judicial Problems (Article 121)

- The FC vested ‘judicial power’ in the two High Courts before 1988 Judicial Crisis.

- The new Art.121(1A) only provides for the jurisdiction of the High Courts, Federal Court and the Court of Appeal without the mention of ‘judicial power’.

- The judiciary now is no longer the only one who may have judicial powers. If one day another institution is formed by the government to play certain functions of a judiciary, that new institution is valid. The FC in Malaysia and the constitution in Jamaica and Ceylon did not expressly mention the term ‘judicial power’.

- The Queen v Liyanage and Hinds v The Queen

Both cases involved the setting up of special courts which had not previously existed, and in both cases the Privy Council ruled that the statute establishing the court was unconstitutional because it interfered with the judicial power, impliedly vested by the Constitution in the ordinary courts of law. The principle established in these cases is that any court which is given judicial powers must be staffed by judges appointed in the usual constitutional manner, or else must be answerable to the ordinary courts as a court of inferior jurisdiction.

- PP v Datuk Yap Peng

In this case, Section 418A of the Criminal Procedure Code which allowed the Attorney General to transfer cases from one court to another, was held to encroach on the judicial power of the courts, vested exclusively in the judiciary under the then Article 121(1) of the Constitution. The decision was rendered ineffective by the Constitution Amendment Act 1988 (Act A704) which amended Article 121(1) to define judicial powers narrowly and amended Article 145 to enlarge the powers of the Attorney General.

- In America, the judicial power is expressly mentioned in the constitution.

-Marbury v Madison

The Supreme Court struck down Judiciary Act of 1789 as it was illegal and unconstitutional. The Court carried out judicial review for the first time.

- Article 121(1A) also led to the introduction of the Syariah Courts. It is unique since all modern democratic countries have only one system of courts dealing with all matters.

- It is stated in Article 121(1A) that High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. The issue arising from this is whether the High Court can review the decisions of the syariah courts and whether the introduction of Syariah courts have created a new system of courts giving rise to two different systems of courts. Another question that arises is whether a dispute between a Muslim and a non-Muslim is subject to the civil court or the syariah court.

- According to Harding, the High Court still has jurisdiction to review the decisions of the Syariah courts as major readjustments would be necessary if the amendments intended to create a new legal system.

Judiciary Crisis 1988

            Before 1988, the Judiciary in Malaysia carried out judicial review frequently and struck down laws or decisions which were unconstitutional such as in Mamat bin Daud and Datuk Yap Peng. However, some of the laws struck down were made by the PM, Tun Dr. Mahathir. He was not pleased and he made speeches attacking the Judiciary. The opposition leader cited him for contempt of court when he complained to Time magazine about the Judiciary’s obstructiveness. The case was dismissed but the Supreme Court gave the PM a tutorial on separation of powers. The Lord President replied to the executive criticisms in speeches and from the bench. In the 1987 UMNO elections, the UMNO leadership had been challenged from within the party. Team A which comprises of Dr.Mahathir and Ghafar Baba narrowly defeated Team B comprising of Tengku Razaleigh and Datuk Musa. 11 Team B members filed a suit challenging the legality of the elections as Team A’s 30 branches sent people to vote even though the branches were not registered. Under the Societies Act, UMNO was declared as illegal and the elections were therefore invalid. Then, Team B applied for the registration of ‘UMNO Malaysia’. The application was rejected by the Registrar because the old UMNO had not yet been deregistered and the name was too similar to the old party. Team A immediately deregistered and registered a new party, ‘UMNO Baru’ and the application was granted. Team B proceeded to register ‘Semangat 46’. Parliament amended Societies Act to transfer assets from the old party to ‘UMNO Baru’. After the general election of 1990, BN still won with a two-thirds majority.

            After a meeting between judges was held, Lord President wrote to the YDPA to intervene and stop the accusations made by the Executive on the Judiciary. The YDPA was not happy and told the PM. PM asked YDPA if he could remove the Lord President and the YDPA assented if there are grounds to do so. PM advised the appointment of a Tribunal and Lord President Tun Salleh was then suspended pending the report of the Tribunal. Tun Salleh objected to the Tribunal because the Chairman was the second in line to be the Lord President and it went against natural justice. The Tribunal rejected his argument and Tun Salleh applied to the High Courts to prevent the Tribunal from proceeding for its unconstitutionality. Later, Tun Salleh renewed his application for a stay before the Supreme Court and the five Supreme Court Justices had taken it upon themselves to hear the case granting Tun Salleh an order restraining the Tribunal from submitting its report. However, those five judges were themselves suspended and another Tribunal was formed to investigate charges against them. Subsequently, the Tun Salleh Tribunal reported recommending his dismissal and the Tribunal on the five judges also reported. Finally, Tun Salleh and two other judges were removed from office.