THE “in-dependent” judiciary relies entirely on its own internalised and institutionalised views, opinions, perspectives, beliefs and values culled from years of study, research and experience. Legal annals are riddled with subjective and objective judicial declarations that are counterproductive per se.
A written constitution is the moral backbone of the nation and not a battle between morality and mortality. It fortifies the inner conscience of the People despite putrefied politics and unjust policies.
“John Marshall has made his decision, now let him enforce it,” declared an infuriated President Andrew Jackson when the US Supreme Court in 1832 decided that Native lands are sacrosanct property belonging to the Native Americans. Despite the Court’s ruling, he refused to enforce it, demonstrating the President’s willingness to disregard the judicial branch’s authority.
The force of stability must underscore an in-dependent/independent judiciary. Intellectual dishonesty of the Executive and Judiciary became evident during the dreadful Dred Scott decision that declared a (human) slave as mere property (chattel). The decision helped trigger the American Civil War.
America may be the home of the brave and the land of the free. But lawyers with a business mind rephrased the mantra: America is the land of the brief and the home of the fee. In a litigious society, the judiciary assumes casino status where the decisions are a toss of the dice depending on the political persuasions of the judges.
The Bench and the Bar claim that Anglo-Saxon jurisprudence is the gold standard. It’s actually gold-plated fortified by formidable bully power. Without its own police force and detention centres, an in-dependent judiciary is merely a toothless, clawless, harmless and hapless tiger.
But the Executive with the complicity of the Legislature refuse reforms to entrench a truly independent judiciary. The full measure of devotion to law and justice for the sake of public order in non-existent. Instead, it underscores unbridled political power in the hands of an undeserving Executive.
The United Kingdom’s Judiciary lost credibility during the Post Office scandal of 2015 involving the sacking of over 900 postmasters mistakenly accused of theft and fraud caused by a faulty computer system. Scholars blame the flawed and faulty judiciary for failing to bring in IT experts to prove or disprove the fraud and theft.
The law-making dissent by Lord Atkin in Liversidge v. Anderson (1942) AC 206 highlighted obedience to the law by the Executive whose power to detain individuals under emergency regulations was not absolute and that the Judiciary had a responsibility to ensure it was not abused. He criticised the majority’s interpretation of the phrase “reasonable cause to believe”, arguing it would allow the Executive to wield unchecked power.
The Mabo 2 decision in Australia is firmly and permanently in legal history as a perfect, seamless and flawless example of an in-dependent and independent Judiciary despite the curious absence of fundamental rights in Australia’s Constitution.
The High Court of Australia decided and declared for the first time that customary native title to land is applicable to the Australian Aboriginal communities rejecting the terra nullius (no-man’s land) argument that the first European settlers had every right to appropriate land they “discovered”.
The position in India is best described by Dr Rajendra Prasad when adopting the Constitution of India: “We have provided in the Indian Constitution for a Judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the Executive.”
“There can be no difference of opinion in the House that our Judiciary must both be independent of the Executive and must also be competent in itself. And, the question is how these two objects could be secured,” insisted Dr B.R. Ambedkar, the key architect of the Constitution of India.
In India, the collegium system of senior judges deals directly without Executive advice as to who is best qualified for candidacy to the Bench. It has worked since 1947 despite numerous insults, rumours, complaints and comments. India constitutionally boasts an in-dependent and independent judiciary.
Malaysia has a long journey to traverse to acquire independent judiciary status. There is, however, a priceless, precious and untouched hidden gem in Article 182(7) Federal Constitution that can become a significant game-changer.
Article 182(7) Federal Constitution (Proceedings against the Yang di-Pertuan Agong and the Rulers) when analysed carefully implies and articulates a final solution. It unequivocally states thus:
“The Yang di-Pertuan Agong may, on the advice of the Chief Justice, make such rules as he may deem necessary or expedient to provide for the removal of any difficulty or anomaly whatsoever in any written law or in the carrying out of any function, the exercise of any power, the discharge of any duty, or the doing of any act, under any written law, that may be occasioned by this Article, and for that purpose such rules may make any modification, adaptation, alteration, change or amendment whatsoever to any written law.”
The language of Article 182(7) grants His Majesty supreme power to bypass even the Cabinet and Parliament to amend any law that poses difficulty or irregularity in the discharge of His Majesty’s constitutional duties. This is not about too much power in one pair of hands. It’s a clear and cogent enunciation of the supreme law of the land.
Article 182 was a “do-it-my-way” constitutional amendment in 1993/1994. But whoever wrote sub-section 7 was a genius. Imagine a constitutional provision designed to bring proceedings against the Yang di-Pertuan Agong – and the Rulers – granting special powers to His Majesty in the spirit of the judicial power and authority vested in Article 162(6) Federal Constitution.
A truly in-dependent Malaysian judiciary is around the corner if the Yang di-Pertuan Agong and the Chief Justice meaningfully huddle minus Executive overreach and oversight. Article 182(7) doesn’t require an esoteric interpretation as it has no hidden meanings, covert agendas, or wanton mischief.
The Yang di-Pertuan Agong enjoys a very assertive and proactive constitutional position given the zeal of Article 182(7). The independent Judiciary must take advantage of this unusual ironclad, waterproof and bulletproof provision to courageously declare the justice in the law in the interests of public order, security and safety.
Article 40 (Yang di-Pertuan Agong to act on advice) goes into a different trajectory from that of Article 182(7). The latter grants the Yang di-Pertuan unbridled power to seek the advice of the Chief Justice. The Federal Constitution is certainly not designed and structured to grant advisory power to His Majesty from three organs of government.
Three captains in the same boat spells total constitutional mutiny!
Article 182(7) is solely concerned with any written law (Parliamentary law) that is anomalous, irregular, facially faulty and decidedly defective. It is therefore safe to assert that Article 182(7) trumps Article 40 because the latter does not contemplate the giving of wrong advice by the Executive to His Majesty.
Meaningless, mindless and misleading precedents that defy the demanding jurisprudential standards of contemporary society must be jettisoned by a masterful application of Article 182(7). It may keep His Majesty busy, but surely the community’s common good can be a worthy royal pursuit.
Malaysia needs a no-nonsense leadership that the Yang di-Pertuan Agong is wholly capable of delivering given His Majesty’s track record especially in chastising a laundry in Johor that insisted on serving solely one particular religious community.
Another example of leadership by His Majesty was the hosting of a luncheon with the Prime Minister in a Chinese restaurant during the halal fracas. It’s abundantly clear who the Executive of this nation is as constitutionally guided and guarded by Article 39 (Executive authority of the Federation) Federal Constitution.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune. The writer can be reached at chiefjudge@secamtektektribe.org.
