Independence of the Judiciary means independence from Executive and Legislature, but not independence from accountability.
– Prashant Bhushan, Indian lawyer and author
THE sentinels of natural justice admittedly realise that an independent Judiciary, as an organ of government, is a bold concept, knowing that the Legislature controlled by the Executive makes all the fatal flaws in the laws.
Every known written constitution is paradoxically labeled the “supreme law of the land”.
It’s not a guide, goad or guardian but a reference book satisfying theoretical purposes under Machiavellian persuasion.
Providentially, Malaysian judges enjoy total and uninterrupted and undisturbed independence courtesy of Article 162(6) of the Federal Constitution – Malaysia’s Marbury v Madison clause in a written constitution.
Article 162(6) grants the power and authority to adjust, amend and even repeal both pre-Merdeka and post-Merdeka legislation.
Common law provides super-strong shock absorbers and suspension systems on the unrepaired potholes of Executive and Legislative overreach.
But ironically, our appointed judges have an uneasy alliance with the Executive plausibly inherited from the European concept of an independent judiciary which is a messy political dalliance.
The House of Lords, as a component of Parliament, was the highest court of appeal until 2009 when the Supreme Court of the United Kingdom was instituted as the final court of appeal for civil cases and criminal cases from England, Wales and Northern Ireland.
‘Separation of powers’ is not a British political fixture because Parliament is so supreme that British courts are impotent in invalidating legislation except delegated legislation.
“As an institution, the Judiciary is not and should never be beholden to anyone but the Federal Constitution,” said Malaysian Chief Justice Mohd Raus Sharif in 2017.
In other words, not even to the Executive nor Parliament!
The Honourable Chief Justice did not factor in the Executive’s will that determines the cause, course, curse, cut, cost and thrust of the administration of law and justice – not jurisprudence adorned with natural law.
The Malaysian Federal Constitution was not written by Malayans, but by five jurists – two from the UK, one from Australia, one from India, and one from Pakistan.
At least the phrase “judicial power” was left intact until it was bludgeoned in 1988.
The full blinding glare of natural justice – doing what is fair and right – demands whether Malaysians in 2025 are incapable of correcting the flaws in an imported constitution by necessary and needful constitutional amendments.
The American Constitution lists three branches of government.
The doctrines of the “basic structure” of the constitution and the “separation of powers” are not enumerated.
Yet the US wants to be the super-policeman of the entire world. They founded the 51st State – the Deep State.
America’s fifty States elect their judges. The federal judges are appointed.
US Supreme Court judicial nominees are required to undergo scathing analysis by the US Senate. And then there are presidential recess appointments without congressional approval!
Berthelsen v Director General of Immigration, Malaysia [1987] 1 MLJ 134; Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 27; Public Prosecutor v Yap Peng [1987] 2 MLJ 311 at 316; Mohamed Noor bin Othman v Mohamed Yusof Jaafar [1988] 2 MLJ 129 stood sturdy, strong, stable, safe and secure in our annals of untrammelled jurisprudence.
These four cases outraged a former prime minister in 1988.
With a Machiavellian mind, muscle and missile, he ripped out the heart of our once untainted independent Judiciary.
The MADANI government is yet to restore “judicial power” in its proper pedestal.
“Section 2 of the Judicial Appointments Commission Act 2009 speaks of upholding the independence of the Judiciary, where it states inter alia that the Prime Minister must uphold the continued independence of the Judiciary and must have regard to the need to defend that independence.”
That call for obedience to the rule of law came from our Chief Justice Tun Tengku Maimun binti Tuan Mat at the 23rd Commonwealth Law Conference held in Goa, India, on March 8, 2023.
India has constitutionally perfected the collegium system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.
Article 50 of the Indian Constitution specifically directs the state “to separate the Judiciary from the Executive in the public services of the State”.
Malaysia should adopt and insert a similar provision into our Federal Constitution.
German Basic Laws in Article 92 vests the judicial power in the judges – GRUNDGESETZ [Constitution] [GG]. Article 97 provides that the judges shall be independent and subject only to the law.
Will a juristocracy or kritarchy (a government operated and controlled by judges) be the answer for Malaysia?
Will we see an end to kakistocracy and kleptocracy if the people directly elected eminent legal practitioners to such a system of government?
Will a juristocracy and an ergatocracy – a system of government or society where workers or the working class hold the ruling power – be the final solution?
After all, what else should a working and workable democracy deliver?
The coming generations must experiment and experience new uses and abuses to set things right.
The old ways must yield to fresh concepts in the marketplace of ideas. Old politicians must simply quit.
Most assuredly ideas have consequences, but as Karen Lebacqz discovered – “any rules of justice will depend on the particular state condition in which people find themselves”.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune.
