Judiciary Independence in Australia and Malaysia
JUDICIAL INDEPENDENCE IN AUSTRALIA AND MALAYSIA MEANING OF JUDICIAL INDEPENDENCE
Montesquieu puts forward the idea that there is no liberty, if the judiciary power is not separated from the legislative and the executive. He said if it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; the judge would then be the legislator. If it were joined with the executive, the judge would behave with violence and oppression1. The principle of separation of powers is the foundation for a democratic state based on the rule of law. The judicial power dispenses justice in disputes between citizens and government and its agencies. Therefore, there is a need to vest this judicial power in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influence to secure its independence and impartiality. The presence of an independent judiciary in a democratic government distinguishes that system from a totalitarian one2. The current form of Westminster government that Australia and Malaysia has adopted keeps the parliament in line with the executive policy. Therefore, the judiciary is seen to be vital in providing the checks and balances. Judicial independence is the very foundation of any worthwhile legal structure. A free society would only exist as long as it is governed by the rule of law, which binds the rulers with the ruled. An independent judiciary is generally an essential requirement for the proper functioning of free and democratic society. The issue of judicial independence involves three fundamental conditions. Security of tenure of the judicial office-bearer, financial security and institutional independence. According to the doctrine of separation of powers, judicial independence is to be taken as a bulwark against the concentration of power in the hands of the Parliament or the bureaucracy. At the practical level, there is a considerable challenge in achieving appropriate degree of independence3. In common law countries, the tension between the executive and the judiciary is the result of the doctrine of separation of powers. Under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. In theory, the doctrine formulate a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and none is supposed to trespass into the other’s jurisdiction. Furthermore, no arm of government is supposed to abdicate power to another arm. The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the pattern for, and generates, tension between the three arms of government. In practice, the doctrine of separation of powers is very difficult to implement. In Australia and to a greater degree, Malaysia, the system of party politics, the doctrine of responsible government and the executive’s desire for an efficient and practical working government has combined to weaken and erode the doctrine of separation of powers. If there were a pure separation of governmental power, effective government would be impossible. It is an accepted fact that the executive and legislative arms of government cannot operate independently of one another. As the United States experience often time shows, when the executive and the legislature cannot agree, a gridlock happens. The fundamental nature of legislative, executive and judicial power, more than any other factor, which has made it so difficult to maintain a strict separation between them. Judicial independence is primarily concerned with the protection of judges once appointed. It also reaches back in the process of selection. Therefore, it is important the judges are seen to be free from any appearance of partiality or pressure from the executive. Apart from the protection that judges enjoy as individuals, the
1 2 3
Montesquieu, The Spirit of the Laws, Book XI. Dato’ Param Cumaraswamy, Justice is Not a Cloistered Virtue; Are Judicial Criticisms inter se Permissible?. RA Hughes, GWG Leane & A Clarke, Australian Legal Institutions: Principles, Structure and Organisation.
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Electronic copy of this paper is available at: http://ssrn.com/abstract=929856
independence of the judiciary as an institution is furthered by the doctrine of separation of powers. Functional separation requires that no branch should control either of the others in their performance of their functions and no branch should be able to perform the functions of any others. Physical separation requires that no individual be able to hold office in more than one branch simultaneously. Even though the doctrine is not mentioned explicitly within both the Australian and Malaysian Constitution, the High Court of Australia and to a lesser degree, the Federal Court of Malaysia has held it to be implicit in the document as far as the judicial branch is concerned. In Australia, only the courts exercise the judicial power of the Commonwealth and courts should not be vested with non-judicial functions4. Unfortunately, the judicial power of the Malaysian courts has been removed when the constitution was amended in 19885.
HISTORY OF AUSTRALIAN AND MALAYSIAN LAW
The reception of the common law, right up to the present day in common law jurisdictions, in settled colonies like Australia or conquered sultanates like the Malay states in present-day Malaysia, adapt the incorporated law from the United Kingdom to suit the local circumstances. The origins of Malaysian and Australian constitutional background derived from the United Kingdom. British occupation began during eighteenth century. The occupation of Penang in 1786 marked the beginning of British rule in Malaysia. The Royal Charter of Justice of 1807, applicable to the British colony of Penang, provided authority for the introduction of English law6. In this sense, Malaysia was an almost exact contemporary of the establishment of British rule in Australia. British law came to Australia in 1788 when the colony of New South Wales was established. The subsequent divergence of attitude towards the doctrine of judicial independence in these two jurisdictions is largely because of the social, political and cultural differences between these two jurisdictions that contributed to it notwithstanding the fact that both inherited this doctrine from British constitutional theory. Both nations have a written constitution unlike the United Kingdom. It is arguably interesting to examine how the judiciary in both nations have developed and the challenges that each faced in maintaining its independence.
THE AUSTRALIAN JUDICIARY
Australia is a pluralist democracy in which there is not a single source of regulatory power. The legislature, the executive and the judiciary are not necessarily perceived in any hierarchical way because all are accountable directly or indirectly to the electorate. The legislature and the executive are directly accountable to the electorate through the institutions of representative and responsible government. The judiciary is indirectly accountable because the legislature has power to remove judges on the grounds of incapacity or misbehaviour. Each of these bodies of power has an instrumental and systemic role to play in running a democracy. This diffusion of political power among the institutions of government gives Australian democracy its pluralist characteristic. The fact that the judiciary in Australia is accountable only in nonelectoral ways does not undermine the validity of its contribution in this context. The legitimacy of each institution within this pluralist conception is determined by reference to its instrumental value in contributing to a democracy. In turn, this instrumental value may be measured by the extent to which courts are practically compelled to regulate society where legislatures are not able or do not do so. The judiciary in Australia has two important strengths in a pluralistic democratic society. Firstly, the judiciary has the capacity to alter the common law to reflect contemporary values and assumptions. Secondly, it also has the capacity to enforce constitutional rights and to determine the boundaries of legislative power in systems governed by written constitutions. In these cases, the decisions of the judiciary either directly change or, where the legislature has power to act, frequently cause the legislature to change the social, economic and political structure of the nation7.
4 5 6 7
Bede Harris, A New Constitution for Australia. Constitution Amendment Act 1988. Michael Kirby, Challenges to Justice in a Plural Society. Michael McHugh, The Strengths of the Weakest Arms.
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Electronic copy of this paper is available at: http://ssrn.com/abstract=929856
Before 1900, the Australian colonies adopted in varying degrees the tripartite separation of governmental power as the basis of its political system. When debating the system of government for the new Commonwealth of Australia, the founders did not create a new system of government. Instead, they adapted ideas for the Australian Constitution from the United Kingdom’s Westminster style of government, the United States’ constitutional structure and from the semi-federal Constitution of Canada, where each system distributed power to three arms of government. To these forms and ideas, the founders made some amendments according to the circumstances and needs of the populace at that time. As a result, the doctrine of the separation of powers is entrenched in the Australian Constitution. The powers of government are set out in three chapters of the Constitution. Chapter I – ‘The Parliament’ - deal with powers of the legislature; Chapter II – ‘The Executive Government’ - provides for executive powers; and Chapter III – ‘The Judicature’ - vests the judicial power of the Commonwealth in the High Court, federal courts and other designated courts. Although the content of legislative and judicial power is defined in the Constitution, the content of executive power is alluded to rather than prescribed. Despite the fundamental natures of legislative, executive and judicial powers are made clear and their ordinary applications distinct, they overlap at some point. Courts formulate laws by making rules for governing their procedures; common law judges legislate by extending or modifying the principles of the common law or giving content to vague statutory notions. The executive exercises judicial functions by deciding issues of law and fact in determining whether a statutory power or discretion should be exercised. And when Parliament punishes for contempt, determines election disputes or summons witnesses under subpoena, it shows that the expression “the High Court of Parliament” remains as accurate a description today as it was in the seventeenth century England. Despite the inefficiencies and tensions, the distinction between the judicial and the executive powers of government in particular continues to be closely guarded in the federal sphere and operates fully. The Privy Council emphasised the importance of the separation in Attorney General for Australia v. R 8 (The Boilermakers Case) when it said that “in a Federal system, the absolute independence of the Judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or by the Executive”. The encroachments referred to by the Privy Council are basically the tense relations that exist between the executive and the judiciary when judicial review is part of the political system. The dangers of the doctrine of the separation of powers are excess. The doctrine depends on the three branches of government understanding their respective areas of jurisdiction and not exceeding them, or at least not exceeding them in a gross or continuous way9. Chapter III of the Constitution governs the judicial branch. The courts under this part are frequently referred to as Chapter III courts. Section 71 of the Constitution gives the judicial power of the Commonwealth in the High Court of Australia, the Federal Court, the Family Court and other courts that the Parliament invests with federal jurisdiction. Under s 72, High Court justices and justices of courts created by the Parliament are appointed by the Governor General in Council. Under s72, their tenure is protected. They may not be dismissed from office, other than by an address by both Houses of Parliament on the grounds of misbehaviour or incapacity and their remuneration may not be reduce while they are in office. The separation of powers doctrine has been rigorously adhered to with respect to the judiciary. Under s 71 courts may exercise judicial power of the Commonwealth. They may only exercise federal jurisdiction a fits the definition of the judicial power of Commonwealth10. The High Court of Australia, the nation’s federal supreme court decided in December 1996 in Wik Peoples v. The State of Queensland11 that the native title to land of the indigenous peoples of Australia was not, as a matter of law, necessarily extinguished by the pastoral leases granted by the Crown and under statute over vast areas of the Australian continent beginning in the 19th century. The decision was by a majority of four to
8 9
[1957] AC 288. Michael McHugh, Tensions between the Executive and the Judiciary. Bede Harris, Essential Constitutional Law. (1996) 187 CLR 1.
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three of the Justices of the seven-member Court. This led to the fiercest criticisms ever made against the judiciary. Several politicians in both Federal and State Parliaments appeared to compete with each other to attack the Court and especially the majority judges. But very few showed any familiarity with the reasoning given by the judges. A senior Federal Minister singled one reasons, given by Justice Michael Kirby, out for special castigation, declaring that he was “underwhelmed” by them. Premier Rob Borbidge described them as nothing more than “rantings and ravings”. He even made the constitutionally dangerous statement that “at the end of the day, the Parliament is the highest court in the land”12. These unprecedented attacks, never seen before in Australia, continued for several months, unmitigated by an effective defence of the Court by the traditional political guardian of judicial independence in Australia, the Attorney General. He stated that he did not agree with the convention that the Attorney General should defend the courts from criticism. The judges must find ways of defending themselves. Several judges and retired judge criticised this statement. The politicians maintained their attack up until the present time. These political comments soon became the springboard for academic and media castigation. Recent High Court decisions, the Court and the justices were labelled with words such as “bogus”’, “pusillanimous and evasive”, guilty of “plunging Australia into the abyss”, a “pathetic ... self-appointed [group of] Kings and Queens”, a group of “basket-weavers”, “gripped ... in a mania for progressivism”, purveyors of “intellectual dishonesty”, unaware of “its place”, “adventurous”, needing a “good behaviour bond”, needing, on the contrary, a sentence to “life on the streets”, an “unfaithful servant of the Constitution”, “undermining democracy”, a body “packed with feral judges”, “a professional labour cartel”. There were many more epithets of a like character, many stronger. Several judges and retired judges, the organised legal profession, leading members of the Bar, a former Governor-General, legal academics, a few members in Parliament and other individuals eventually spoke out in defence of the High Court13. The Chief Justice of Australia, in an unprecedented move, wrote a private letter to the Acting Prime Minister to correct the erroneous suggestion, made publicly, that the court had deliberately delayed its decision in the pastoral leases case. The Chief Justice of Australia then spoke of the dangers of such sustained attacks on the judiciary at a series of legal conferences in Australia and overseas. From the United States, one Kathryn Graham wrote to the Australian press to condemn the disappointing lack of understanding of the role of the court. The Chief Justice of New South Wales, in October 1997, called for a truce and for mutual respect between the branches of government. But the debate and the attacks go on. The feature of the Australian debate that has concerned many lawyers has been the complete shift from the bipartisan political acceptance of constitutional and other important decisions of the Court which had marked Australia’s history in the past, even when those decisions were extremely important and controversial. There is also the concern that such an unchecked criticism would undermine confidence in the courts and acceptance of court decisions. There might be this argument putting forward that robust legal debate is good for the country. But a lot of judges and lawyers, unused to such unrelenting assaults, had their doubts14. However, in a free society, criticism of the judiciary is inevitable and some attention to the courts and their doings is both justifiable and desirable. The problem is about measuring the acceptable amount of criticism. In recent years, governments in the various states have resorted to appoint acting judges from the ranks of legal practitioners, academics and retired judges. This in principle would lead to serious problems. Judicial independence is at risk when future appointment or security of tenure is within the area of the executive. The practice of appointing acting judges rather than supplementing the permanent establishment of the judiciary is questionable because their reappointment or permanent appointment is at the discretion of the AttorneyGeneral and Cabinet. This practice can be said to be similar to the Malaysian method of appointing judicial commissioner without the security of tenure. This clearly lacks judicial independence in the accepted sense. This trend is a justified cause for concerns. However, it is admitted that most who accepted part-time or temporary appointment would not be influenced in their decisions by the lack of guaranteed tenure. There is a question then of those who accepted a permanent appointment. This would lead to pressures when confronted with decisions that are potentially upsetting to the government. These pressures should not be
12 13 14
Bede Harris, A New Constitution for Australia. Michael Kirby, Attacks on Judges: A Universal Phenomenon. Michael Kirby, Attack on Judges: A Universal Phenomenon.
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imposed on decision makers.
THE MALAYSIAN JUDICIARY
Malaysia is a federation of thirteen states. The supreme law of the federation is the Federal Constitution. The Constitution provides for the exercise of judicial power in the Federation. These are stated in Articles 121 to 131A of the constitution. Malaysia has a single structure judicial system consisting of two parts, the superior courts and subordinate courts. The subordinate courts are the Magistrate’s Courts and the Sessions Courts. The superior courts are the two High Courts of co-ordinate jurisdiction and status, one for West Malaysia and the other for the Borneo states of Sabah and Sarawak, the Court of Appeal and the Federal Court. Both the Magistrates’ Court and the Sessions Court have wide criminal and civil jurisdiction. Apart from having civil and criminal jurisdiction, the High court has appellate or revisionary jurisdiction in respect of criminal matters decided by a Magistrates’ Court, a Sessions Court and hears appeals in civil cases from the Magistrates Court and Sessions Court. The Court of Appeal has appellate jurisdiction to hear both civil and criminal cases originating from the High Court or, in criminal cases from the Sessions Court. In addition, it may, with leave, hear appeal against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court on questions of law. The Federal Court has jurisdiction to determine appeals of decisions of the Court of Appeal and High Court. It has certain original or consultative jurisdiction as specified in Articles 128 and 130 of the Federal Constitution and other jurisdiction as may be conferred under Federal law as stated in Article 121(2) of the Federal Constitution. None of these courts has jurisdiction in respect of any matter within the jurisdiction of the Sharia (Islamic law) Court15. Because the administration of justice is a federal matter, there is a large amount of uniformity in the administration of justice between the states even though there are two High Courts of co-ordinate jurisdictions. The only state courts existing in Malaysia are the Syariah (Islamic) Courts and the native courts of the Borneo states of Sabah and Sarawak. All judges are appointed by the Monarch acting on advice of the Prime Minister according to Article 122B (1) of the Federal Constitution. Before tendering his advice on the appointment of judges other than the Chief Justice, the Prime Minister is required to consult the Chief Justice according to Article 122B(2). For the appointment of the Chief Judge of the High Court of Malaya and Borneo, the Prime Minister has to consult the respective heads of those courts. The judges, in practice are appointed from either the Bar or the Judicial and Legal Service. Under Article 132(1) of the Federal Constitution, the Judicial and Legal Service is a public service answerable to the Judicial and Legal Service Commission of which the Attorney General, or is some circumstances the Solicitor General is a member. Currently a majority of the judges in the superior courts were appointed from the Judicial and Legal Service. Judges in the subordinate courts are drawn from almost entirely from the Judicial and Legal Service. An employee of the Judicial and Legal Service will spend time in each of its department. Therefore, an employee could be a prosecutor one day and a magistrate the next but in either capacity would still is part of the same service and answerable to the Judicial and Legal Service Commission. The recruitment of judges from this body is a strong cause for concern. The frequent interchange of judges and prosecutors from the same service raise doubts as to their independence. Administrative independence has not been a part of the Malaysian judiciary. The courts do not control their own budgets. Judicial personnel in the courts are often appointed from legal officers and prosecutors. This gives rise to the question of the judges’ security of tenure. Article 122 of the Federal Constitution was amended to allow appointment of judicial commissioners ‘with powers to perform such functions of a judge of the High Court as appear to him to require to be performed…’ Normally appointed on contract for an initial term of two years, a judicial commissioner would then be recommended for appointment as a judge of the High Court if found to have served satisfactorily. The Lord President (Now titled as Chief Justice after 1994) would then make his recommendation to the Prime Minister16.It is not clear on what basis judicial commissioners are appointed. The fact that a judicial commissioner is a probationary judge and without any security of tenure, his or her ability to be independent and not subject to external influences in making judicial decisions is very much questionable. The practice of
15 16
Justice in Jeopardy: Malaysia 2000. Raja Aziz Addruse, Judicial Appointments: Who Has the Last Say.
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appointing judicial commissioner should be discontinued. Judicial commissioners do not have the security of tenure necessary to ensure their independence. Appointment of judicial commissioners is arguably not consistent with the requirement of an independent judiciary. In the early days of independence, the judges of Malaya, because all of them had their training in England where Parliament and not the Constitution is supreme, seemed to have philosophical difficulties in accepting their new role as guardians of the Constitution17. They are still not used to the idea of being guardians of the written constitution and until now are still more familiar with the notion of parliamentary supremacy rather than constitutional supremacy. This initial inability to recognise constitutional supremacy led to the weakening of the judiciary. Even though the Federal Constitution stated the principle of constitutional supremacy, the judges at that time were more familiar with the British tradition of parliamentary supremacy. Parliamentary supremacy is effective in England because the powers of the three branches of government are kept in balance by the monarch who has wider prerogative powers compared to the Malaysian Monarch. Constitutional amendments have reduced the position of the Malaysian Monarch as a mere figurehead. In reality, the British system of balance of power does not have its Malaysian equivalent. The Malaysian judiciary was intended to enforce the checks and balances in the Constitution. The failure of the judiciary to grasp its role as guardians of the Constitution, unlike its Australian counterpart, led to its independence to be undermined by the executive body in the subsequent years18. The Malaysian court holds a positivist view and conservative pragmatism. Although the court is ready to uphold certain fundamental liberties such as proprietary rights, but it is of the view that personal liberty should be put aside to the overriding need of national stability, order and security. Before 1988, Malaysian judiciary was well respected within the British Commonwealth of Nations for its integrity. From 1957 until the mid-1980s, the Malaysian judiciary built for itself a reputation of being independent and impartial and held a high public esteem. There was, it seems, no accusation of judicial improprieties, corruption, bias or judicial misconduct during this period. After independence, there is still a right of appeal to the Privy Council if one was aggrieved by the decision of the Federal Court. But as time passed, fewer and fewer appeals were referred to the Privy Council and were taken as an indication of the public satisfaction and appreciation of the competence of the Malaysian judiciary. Finally, it was decided towards the end of the 1970s that this right of appeal to the Privy Council be discontinued. The Federal Court in the early 1980s became the final Court of Appeal in Malaysia, and was renamed the Supreme Court. After the 1988 constitutional crisis where the head of judiciary was removed, the Malaysian judiciary’s independence was severely compromised. The constitution was amended to transfer the judicial power of the Malaysian Federation from the judiciary to the parliament. The judiciary now has limited powers as the parliament sees fit to give. The executive dissatisfaction with the judiciary began with the then Supreme Court’s decision in JP Berthelsen v. Director General of Immigration Malaysia & Ors19 in 1986. An American staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal had been granted a two-year employment pass valid until November 2nd 1986. On September 26th 1986, he was served with a notice of cancellation of his employment pass under the Immigration Regulations 1963. The notice stated that the Director-General of Immigration was satisfied that Berthelsen had contravened or failed to comply with the Immigration Act 1959-63 and the Immigration Regulation 1963. Therefore, his presence was prejudicial to the security of the country. He sought leave from the High Court for an order of certiorari to quash the cancellation of the employment pass. When the court refused to grant leave, he appealed to the Supreme Court. The Supreme Court held that Berthelsen was lawfully in the country; under an employment pass validly issued for a specified period and that he had a legitimate expectation to be entitled to remain in the country. The Court concluded that Berthelsen had not been given the opportunity to make representation
17 18 19
Tommy Thomas, Human Rights in 21st Century Malaysia. Poh-Ling Tan, Asian Legal Systems. [1987] 1 MLJ 134.
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regarding the cancellation of his employment pass. The court then gave an order of certiorari. The Prime Minister at that time remarked in the parliamentary debates that the laws clearly stated that the Minister could decide how long a foreigner could stay in the country and that this decision was final. He said that the “judge overruled this. That was a well-known case. The person was allowed to stay here and the Minister could not do anything”20. This clearly shows that the executive did not understand the role of the judiciary. The previous three prime ministers before him were trained as English barristers and therefore understood and had respect for the nature of the judiciary. The Supreme Court’s decision in Public Prosecutor v Dato’ Yap Peng provoked the Prime Minister to bring about change undermining that decision when the Parliament enacted the Constitution (Amendment) Act 1988. In this case, the accused was charged with two counts of criminal breach of trust. When his case was mentioned again in the Sessions Court, the Deputy Public Prosecutor tendered a certificate under section 418A of the Criminal Procedure Code. The President of the Court transferred the case to the High Court. When the accused was charged again in the High Court on the same two charges, there was an objection against the transfer of the case from the Sessions Court to the High Court. The High Court concluded that section 418A of the Criminal Procedure Code was unconstitutional on the grounds it infringed Article 121(1) of the Constitution which provides that “the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status…and in such inferior courts as may be provided by federal law”. The Supreme Court dismissed the Public Prosecutor’s appeal. The majority pointed out that what was under challenge was a power at any stage of the proceedings to effect the transfer of any particular case pending before a subordinate court competent to try it to the High Court. The court held that section 418A was both a legislative and executive intrusion into the judicial power of the Federation. As a response to this decision, the Constitution (Amendment) Act 1988 was enacted. One of its provisions sought to remove the vesting of judicial power of the Federation in the courts. It states that the High Courts and inferior courts “shall have such jurisdictions and powers as may be conferred by or under federal law”. The reputation of the judiciary was severely undermined by the events of 1988. In May 1988, 20 judges attended a meeting where they all agreed that the then Lord President write to the Monarch and other rulers, expressing their concerns regarding the public criticism of the judiciary by the executive. Due to this fact the Lord President was removed from office by a hastily convened tribunal after the Prime Minister made a representation to the Monarch by invoking the procedure provided under Article 125 of the Federal Constitution which states “If the Prime Minister…represents to the Yang di-Pertuan Agong [Monarch] that a judge of the Federal Court ought to be removed on the ground of misbehaviour…the Yang di-Pertuan Agong shall appoint a tribunal…and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office”. Several months before making the representation, the Prime Minister made statements within and outside the Parliament, criticising the judiciary and judges for various reasons. He was displeased that the judiciary construed the law in a manner unacceptable to him. Among those appointed to the tribunal, was the Chief Justice of the High Court, who was himself present at the meeting of the judges, and as second in seniority in the judicial hierarchy, would be appointed to the vacancy caused by the Lord President’s removal21. The presence of the Speaker of the Lower House, a politician as a member of the tribunal gave rise to the question of its impartiality. The choice and composition of the tribunal, the procedures followed by them and the broad definition of judicial misbehaviour adopted by the tribunal begs the question that these matters should have been spelt in greater detail and Article 125 as it was is not the safeguard for judges as it was intended to be22. When the Supreme Court granted an injunction prohibiting the tribunal from hearing the misconduct allegations, five Supreme Court justices were suspended (and three later removed), and the injunction was overturned. This was the greatest blow to judicial independence in Malaysian history. Around the same time, the federal Constitution was amended to remove the courts of the “judicial power of the Federation”, granting them instead such judicial powers as Parliament might allow them.
20 21 22
HP Lee, Constitutional Conflicts in Contemporary Malaysia. Poh-Ling Tan, Asian Legal Systems. FA Trindade, The Removal of Malaysian Judges.
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In 1994 in a move seen by many as a further downgrading of the judiciary, the office of Lord President was renamed Chief Justice of Malaysia, the chief justices of Malaya and Borneo renamed Chief Judge of Malaya and Chief Judge of Sabah and Sarawak respectively. The Supreme Court was renamed the Federal Court. In the same year the government gazetted a judges’ court of ethics to clarify the ambiguity that existed in Article 125 of the Federal Constitution, which allowed a judge to be removed for misbehaviour without defining what the term “misbehaviour”really means. Prior to the 1988 judicial crisis, the chairperson of the Malaysian Bar and other senior lawyers were consulted informally by the Lord President on the suitability of candidates before he made a recommendation for appointment as judges. After the crisis, this practice stopped. The head of the Malaysian judiciary no longer consulted the Bar Council chairman or other senior members of the Bar on the suitability of candidates he proposed to recommend for appointment. This is because the Malaysian Bar issued a strong opposition against the removal of the Lord President at that time. A fact-finding mission23 to Malaysia led by an international committee of jurist recommended several steps to improve the state of the judiciary in Malaysia. The executive in this case should recognise that its attack on the judiciary in the period leading up to 1988 is the root cause of the current problem. The executive should recognise the independent, constitutional position of the judiciary and have a proper understanding of what that involves. The executive’s failure to understand the role of the judiciary has caused the current position as it is today. The executive must not conduct its business as to interfere with the independence of the judiciary. The judiciary must act and be seen to act with complete independence from the executive. It would be useful to establish a judicial service commission to recommend judicial appointment. The interchangeability of lawyers and judges under the combined Judicial and Legal Service should cease to ensure the separation of powers and independence of the judiciary. To date, the Malaysian judiciary has not yet implemented these recommended steps.
CONCLUDING THOUGHTS
The significance of judicial independence is little understood24. Judicial independence is important because a free society only exist as long as it is governed by the rule of law. The rule of law is compromised when the independence of the judiciary is subverted. The judiciary has an important role in softening the effect of the laws through the interpretation and application of justice and equity. This arguably was the case as demonstrated in Berthelsen and Wik where the court ruled against the will of the executive. The erosion of judicial independence in Malaysia as was discussed should serve as a warning sign against the incursion of the executive into areas of the judiciary and prolonged confrontation between the executive and the judiciary. The case of the Malaysian judiciary clearly shows that an independent judiciary is a vulnerable institution. The Australian judiciary would very well take heed and ensure that it does not go down the path that the Malaysian judiciary has taken. It is clear that this significant divergence of attitude between Australia and Malaysia towards the judiciary and the notion of judicial independence are due to the cultures and society of these two nations. In Malaysia, the adaptation of the British constitutional theory is very much problematic. English law and constitutional notions are, to a certain degree, rooted within the Judaeo-Christian ethos. To transplant that into a country where the dominant cultural ethos is totally different would lead to conceptual and philosophical difficulty. Perhaps the reason why it was less problematic when the British constitutional theory is adapted in Australia is because of both nations’ shared cultural origins.
23 24
Justice in Jeopardy: Malaysia in 2000. Ninian Stephen, Why Judicial Independence?.
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BIBLIOGRAPHY
1. Peter A Williams QC, Judicial Misconduct, Pelanduk Publications, 1990 2. Kevin YL Tan, TM Yeo & KS Lee, Constitutional Law in Malaysia and Singapore, Malayan Law Journal Publications, 1991 3. HP Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press, 1995 4. Poh-Ling Tan (ed), Asian Legal Systems, Butterworths, 1997 5. Sharifah Suhana Ahmad, Malaysian Legal System, Malayan Law Journal Publications, 1999 6. Peter de Cruz, Comparative Law in a Changing World, 2nd ed, Cavendish Publishing, 1999 7. S Joseph & M Castan, Federal Constitutional Law: A Contemporary View, Lawbook Co., 2001 8. Suri Ratnapala, Australian Constitutional Law: Foundations and Theory, Oxford University Press, 2002 9. G Hassall & C Saunders, Asia-Pacific Constitutional Systems, Cambridge University Press, 2002 10. Bede Harris, A New Constitution for Australia, Cavendish Publishing, 2002 11. RA Hughes, GWG Leane & A Clarke, Australian Legal Institutions: Principles, Structure and Organisation, Lawbook Company, 2003 12. Bede Harris, Essential Constitutional Law, 2nd ed, Cavendish Publishing, 2004 13. Sir Gerard Brennan, ‘Judicial Independence’, The Australian Judicial Conference, Canberra, 2 November 1996 14. Justice Michael Kirby, ‘Attacks on Judges- A Universal Phenomenon’, American Bar Association section of litigation winter leadership meeting, Hawaii, 5 January 1998 15. Justice Michael Kirby, ‘Independence of the Judiciary- Basic Principle, New Challenges’, International Bar Association Human Rights Institute Conference, Hong Kong, 12-14 June 1998 16. Justice Michael Kirby, ‘Courts & Politics: Judicial Independence- Summing Up’, Yale Global Constitutionalism Seminar, Yale Law School, 16 September 2000 17. Justice Michael Kirby, ‘The Challenges to Justice in a Plural Society’, Commonwealth Lawyers’ Association Judicial Conference, Kuala Lumpur, 4 April 2002 18. Justice Michael McHugh, ‘Tensions Between the Executive and the Judiciary’, Australian Bar Association Conference, Paris, 10 July 2002 19. Sir Ninian Stephen, ‘Why Judicial Independence?’, The Centre for Democratic Institutions AsiaPacific Judicial Educators Forum, January 2004 20. Justice Michael McHugh, ‘The Strength of the Weakest Arm’, Australian Bar Association Conference, Florence, 2 July 2004 21. The International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, The Commonwealth Lawyers’ Association & The Union Internationale des Avocats mission report, ‘Justice in Jeopardy: Malaysia in 2000’ (17-27 April 1999) 22. GTS Sidhu, ‘Independence of the Judiciary’ (1976) Malayan Law Journal 9 23. FA Trindade, ‘The Removal of Malaysian Judges’ (1990) 106 Law Quarterly Review 51 24. Tommy Thomas, ‘Human Rights in 21st Century Malaysia’ (2001) XXX No. 2 The Journal of the Malaysian Bar 91 25. Dato’ Param Cumaraswamy, ‘Justice is not a Cloistered Virtue: Are Judicial Criticisms inter se Permissible?’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 3 26. Raja Aziz Addruse, ‘Judicial Appointments: Who Has the Last Say’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 43 27. Dato’ Param Cumaraswamy, ‘Parliamentary Action to Ensure the Independence and Good Administration of Justice’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 82 28. Chief Justice John Doyle, ‘The Well-tuned Cymbal’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 29. Daryl Williams, ‘Independence of the Judiciary- Some Federal Government Initiatives’, Fragile Bastion: Judicial Independence in the Nineties and Beyond
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30. PH Lane, ‘Constitutional Aspects of Judicial Independence’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 31. Sir Anthony Mason, ‘The Appointment and Removal of Judges’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 32. Lord Justice Brooke, ‘Judicial Independence- Its History in England and Wales’, Fragile Bastion: Judicial Independence in the Nineties and Beyond
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Bibliography: 1. Peter A Williams QC, Judicial Misconduct, Pelanduk Publications, 1990 2. Kevin YL Tan, TM Yeo & KS Lee, Constitutional Law in Malaysia and Singapore, Malayan Law Journal Publications, 1991 3. HP Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press, 1995 4. Poh-Ling Tan (ed), Asian Legal Systems, Butterworths, 1997 5. Sharifah Suhana Ahmad, Malaysian Legal System, Malayan Law Journal Publications, 1999 6. Peter de Cruz, Comparative Law in a Changing World, 2nd ed, Cavendish Publishing, 1999 7. S Joseph & M Castan, Federal Constitutional Law: A Contemporary View, Lawbook Co., 2001 8. Suri Ratnapala, Australian Constitutional Law: Foundations and Theory, Oxford University Press, 2002 9. G Hassall & C Saunders, Asia-Pacific Constitutional Systems, Cambridge University Press, 2002 10. Bede Harris, A New Constitution for Australia, Cavendish Publishing, 2002 11. RA Hughes, GWG Leane & A Clarke, Australian Legal Institutions: Principles, Structure and Organisation, Lawbook Company, 2003 12. Bede Harris, Essential Constitutional Law, 2nd ed, Cavendish Publishing, 2004 13. Sir Gerard Brennan, ‘Judicial Independence’, The Australian Judicial Conference, Canberra, 2 November 1996 14. Justice Michael Kirby, ‘Attacks on Judges- A Universal Phenomenon’, American Bar Association section of litigation winter leadership meeting, Hawaii, 5 January 1998 15. Justice Michael Kirby, ‘Independence of the Judiciary- Basic Principle, New Challenges’, International Bar Association Human Rights Institute Conference, Hong Kong, 12-14 June 1998 16. Justice Michael Kirby, ‘Courts & Politics: Judicial Independence- Summing Up’, Yale Global Constitutionalism Seminar, Yale Law School, 16 September 2000 17. Justice Michael Kirby, ‘The Challenges to Justice in a Plural Society’, Commonwealth Lawyers’ Association Judicial Conference, Kuala Lumpur, 4 April 2002 18. Justice Michael McHugh, ‘Tensions Between the Executive and the Judiciary’, Australian Bar Association Conference, Paris, 10 July 2002 19. Sir Ninian Stephen, ‘Why Judicial Independence?’, The Centre for Democratic Institutions AsiaPacific Judicial Educators Forum, January 2004 20. Justice Michael McHugh, ‘The Strength of the Weakest Arm’, Australian Bar Association Conference, Florence, 2 July 2004 21. The International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, The Commonwealth Lawyers’ Association & The Union Internationale des Avocats mission report, ‘Justice in Jeopardy: Malaysia in 2000’ (17-27 April 1999) 22. GTS Sidhu, ‘Independence of the Judiciary’ (1976) Malayan Law Journal 9 23. FA Trindade, ‘The Removal of Malaysian Judges’ (1990) 106 Law Quarterly Review 51 24. Tommy Thomas, ‘Human Rights in 21st Century Malaysia’ (2001) XXX No. 2 The Journal of the Malaysian Bar 91 25. Dato’ Param Cumaraswamy, ‘Justice is not a Cloistered Virtue: Are Judicial Criticisms inter se Permissible?’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 3 26. Raja Aziz Addruse, ‘Judicial Appointments: Who Has the Last Say’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 43 27. Dato’ Param Cumaraswamy, ‘Parliamentary Action to Ensure the Independence and Good Administration of Justice’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 82 28. Chief Justice John Doyle, ‘The Well-tuned Cymbal’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 29. Daryl Williams, ‘Independence of the Judiciary- Some Federal Government Initiatives’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 9 30. PH Lane, ‘Constitutional Aspects of Judicial Independence’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 31. Sir Anthony Mason, ‘The Appointment and Removal of Judges’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 32. Lord Justice Brooke, ‘Judicial Independence- Its History in England and Wales’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 10
Montesquieu puts forward the idea that there is no liberty, if the judiciary power is not separated from the legislative and the executive. He said if it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; the judge would then be the legislator. If it were joined with the executive, the judge would behave with violence and oppression1. The principle of separation of powers is the foundation for a democratic state based on the rule of law. The judicial power dispenses justice in disputes between citizens and government and its agencies. Therefore, there is a need to vest this judicial power in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influence to secure its independence and impartiality. The presence of an independent judiciary in a democratic government distinguishes that system from a totalitarian one2. The current form of Westminster government that Australia and Malaysia has adopted keeps the parliament in line with the executive policy. Therefore, the judiciary is seen to be vital in providing the checks and balances. Judicial independence is the very foundation of any worthwhile legal structure. A free society would only exist as long as it is governed by the rule of law, which binds the rulers with the ruled. An independent judiciary is generally an essential requirement for the proper functioning of free and democratic society. The issue of judicial independence involves three fundamental conditions. Security of tenure of the judicial office-bearer, financial security and institutional independence. According to the doctrine of separation of powers, judicial independence is to be taken as a bulwark against the concentration of power in the hands of the Parliament or the bureaucracy. At the practical level, there is a considerable challenge in achieving appropriate degree of independence3. In common law countries, the tension between the executive and the judiciary is the result of the doctrine of separation of powers. Under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. In theory, the doctrine formulate a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and none is supposed to trespass into the other’s jurisdiction. Furthermore, no arm of government is supposed to abdicate power to another arm. The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the pattern for, and generates, tension between the three arms of government. In practice, the doctrine of separation of powers is very difficult to implement. In Australia and to a greater degree, Malaysia, the system of party politics, the doctrine of responsible government and the executive’s desire for an efficient and practical working government has combined to weaken and erode the doctrine of separation of powers. If there were a pure separation of governmental power, effective government would be impossible. It is an accepted fact that the executive and legislative arms of government cannot operate independently of one another. As the United States experience often time shows, when the executive and the legislature cannot agree, a gridlock happens. The fundamental nature of legislative, executive and judicial power, more than any other factor, which has made it so difficult to maintain a strict separation between them. Judicial independence is primarily concerned with the protection of judges once appointed. It also reaches back in the process of selection. Therefore, it is important the judges are seen to be free from any appearance of partiality or pressure from the executive. Apart from the protection that judges enjoy as individuals, the
1 2 3
Montesquieu, The Spirit of the Laws, Book XI. Dato’ Param Cumaraswamy, Justice is Not a Cloistered Virtue; Are Judicial Criticisms inter se Permissible?. RA Hughes, GWG Leane & A Clarke, Australian Legal Institutions: Principles, Structure and Organisation.
1
Electronic copy of this paper is available at: http://ssrn.com/abstract=929856
independence of the judiciary as an institution is furthered by the doctrine of separation of powers. Functional separation requires that no branch should control either of the others in their performance of their functions and no branch should be able to perform the functions of any others. Physical separation requires that no individual be able to hold office in more than one branch simultaneously. Even though the doctrine is not mentioned explicitly within both the Australian and Malaysian Constitution, the High Court of Australia and to a lesser degree, the Federal Court of Malaysia has held it to be implicit in the document as far as the judicial branch is concerned. In Australia, only the courts exercise the judicial power of the Commonwealth and courts should not be vested with non-judicial functions4. Unfortunately, the judicial power of the Malaysian courts has been removed when the constitution was amended in 19885.
HISTORY OF AUSTRALIAN AND MALAYSIAN LAW
The reception of the common law, right up to the present day in common law jurisdictions, in settled colonies like Australia or conquered sultanates like the Malay states in present-day Malaysia, adapt the incorporated law from the United Kingdom to suit the local circumstances. The origins of Malaysian and Australian constitutional background derived from the United Kingdom. British occupation began during eighteenth century. The occupation of Penang in 1786 marked the beginning of British rule in Malaysia. The Royal Charter of Justice of 1807, applicable to the British colony of Penang, provided authority for the introduction of English law6. In this sense, Malaysia was an almost exact contemporary of the establishment of British rule in Australia. British law came to Australia in 1788 when the colony of New South Wales was established. The subsequent divergence of attitude towards the doctrine of judicial independence in these two jurisdictions is largely because of the social, political and cultural differences between these two jurisdictions that contributed to it notwithstanding the fact that both inherited this doctrine from British constitutional theory. Both nations have a written constitution unlike the United Kingdom. It is arguably interesting to examine how the judiciary in both nations have developed and the challenges that each faced in maintaining its independence.
THE AUSTRALIAN JUDICIARY
Australia is a pluralist democracy in which there is not a single source of regulatory power. The legislature, the executive and the judiciary are not necessarily perceived in any hierarchical way because all are accountable directly or indirectly to the electorate. The legislature and the executive are directly accountable to the electorate through the institutions of representative and responsible government. The judiciary is indirectly accountable because the legislature has power to remove judges on the grounds of incapacity or misbehaviour. Each of these bodies of power has an instrumental and systemic role to play in running a democracy. This diffusion of political power among the institutions of government gives Australian democracy its pluralist characteristic. The fact that the judiciary in Australia is accountable only in nonelectoral ways does not undermine the validity of its contribution in this context. The legitimacy of each institution within this pluralist conception is determined by reference to its instrumental value in contributing to a democracy. In turn, this instrumental value may be measured by the extent to which courts are practically compelled to regulate society where legislatures are not able or do not do so. The judiciary in Australia has two important strengths in a pluralistic democratic society. Firstly, the judiciary has the capacity to alter the common law to reflect contemporary values and assumptions. Secondly, it also has the capacity to enforce constitutional rights and to determine the boundaries of legislative power in systems governed by written constitutions. In these cases, the decisions of the judiciary either directly change or, where the legislature has power to act, frequently cause the legislature to change the social, economic and political structure of the nation7.
4 5 6 7
Bede Harris, A New Constitution for Australia. Constitution Amendment Act 1988. Michael Kirby, Challenges to Justice in a Plural Society. Michael McHugh, The Strengths of the Weakest Arms.
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Electronic copy of this paper is available at: http://ssrn.com/abstract=929856
Before 1900, the Australian colonies adopted in varying degrees the tripartite separation of governmental power as the basis of its political system. When debating the system of government for the new Commonwealth of Australia, the founders did not create a new system of government. Instead, they adapted ideas for the Australian Constitution from the United Kingdom’s Westminster style of government, the United States’ constitutional structure and from the semi-federal Constitution of Canada, where each system distributed power to three arms of government. To these forms and ideas, the founders made some amendments according to the circumstances and needs of the populace at that time. As a result, the doctrine of the separation of powers is entrenched in the Australian Constitution. The powers of government are set out in three chapters of the Constitution. Chapter I – ‘The Parliament’ - deal with powers of the legislature; Chapter II – ‘The Executive Government’ - provides for executive powers; and Chapter III – ‘The Judicature’ - vests the judicial power of the Commonwealth in the High Court, federal courts and other designated courts. Although the content of legislative and judicial power is defined in the Constitution, the content of executive power is alluded to rather than prescribed. Despite the fundamental natures of legislative, executive and judicial powers are made clear and their ordinary applications distinct, they overlap at some point. Courts formulate laws by making rules for governing their procedures; common law judges legislate by extending or modifying the principles of the common law or giving content to vague statutory notions. The executive exercises judicial functions by deciding issues of law and fact in determining whether a statutory power or discretion should be exercised. And when Parliament punishes for contempt, determines election disputes or summons witnesses under subpoena, it shows that the expression “the High Court of Parliament” remains as accurate a description today as it was in the seventeenth century England. Despite the inefficiencies and tensions, the distinction between the judicial and the executive powers of government in particular continues to be closely guarded in the federal sphere and operates fully. The Privy Council emphasised the importance of the separation in Attorney General for Australia v. R 8 (The Boilermakers Case) when it said that “in a Federal system, the absolute independence of the Judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or by the Executive”. The encroachments referred to by the Privy Council are basically the tense relations that exist between the executive and the judiciary when judicial review is part of the political system. The dangers of the doctrine of the separation of powers are excess. The doctrine depends on the three branches of government understanding their respective areas of jurisdiction and not exceeding them, or at least not exceeding them in a gross or continuous way9. Chapter III of the Constitution governs the judicial branch. The courts under this part are frequently referred to as Chapter III courts. Section 71 of the Constitution gives the judicial power of the Commonwealth in the High Court of Australia, the Federal Court, the Family Court and other courts that the Parliament invests with federal jurisdiction. Under s 72, High Court justices and justices of courts created by the Parliament are appointed by the Governor General in Council. Under s72, their tenure is protected. They may not be dismissed from office, other than by an address by both Houses of Parliament on the grounds of misbehaviour or incapacity and their remuneration may not be reduce while they are in office. The separation of powers doctrine has been rigorously adhered to with respect to the judiciary. Under s 71 courts may exercise judicial power of the Commonwealth. They may only exercise federal jurisdiction a fits the definition of the judicial power of Commonwealth10. The High Court of Australia, the nation’s federal supreme court decided in December 1996 in Wik Peoples v. The State of Queensland11 that the native title to land of the indigenous peoples of Australia was not, as a matter of law, necessarily extinguished by the pastoral leases granted by the Crown and under statute over vast areas of the Australian continent beginning in the 19th century. The decision was by a majority of four to
8 9
[1957] AC 288. Michael McHugh, Tensions between the Executive and the Judiciary. Bede Harris, Essential Constitutional Law. (1996) 187 CLR 1.
10 11
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three of the Justices of the seven-member Court. This led to the fiercest criticisms ever made against the judiciary. Several politicians in both Federal and State Parliaments appeared to compete with each other to attack the Court and especially the majority judges. But very few showed any familiarity with the reasoning given by the judges. A senior Federal Minister singled one reasons, given by Justice Michael Kirby, out for special castigation, declaring that he was “underwhelmed” by them. Premier Rob Borbidge described them as nothing more than “rantings and ravings”. He even made the constitutionally dangerous statement that “at the end of the day, the Parliament is the highest court in the land”12. These unprecedented attacks, never seen before in Australia, continued for several months, unmitigated by an effective defence of the Court by the traditional political guardian of judicial independence in Australia, the Attorney General. He stated that he did not agree with the convention that the Attorney General should defend the courts from criticism. The judges must find ways of defending themselves. Several judges and retired judge criticised this statement. The politicians maintained their attack up until the present time. These political comments soon became the springboard for academic and media castigation. Recent High Court decisions, the Court and the justices were labelled with words such as “bogus”’, “pusillanimous and evasive”, guilty of “plunging Australia into the abyss”, a “pathetic ... self-appointed [group of] Kings and Queens”, a group of “basket-weavers”, “gripped ... in a mania for progressivism”, purveyors of “intellectual dishonesty”, unaware of “its place”, “adventurous”, needing a “good behaviour bond”, needing, on the contrary, a sentence to “life on the streets”, an “unfaithful servant of the Constitution”, “undermining democracy”, a body “packed with feral judges”, “a professional labour cartel”. There were many more epithets of a like character, many stronger. Several judges and retired judges, the organised legal profession, leading members of the Bar, a former Governor-General, legal academics, a few members in Parliament and other individuals eventually spoke out in defence of the High Court13. The Chief Justice of Australia, in an unprecedented move, wrote a private letter to the Acting Prime Minister to correct the erroneous suggestion, made publicly, that the court had deliberately delayed its decision in the pastoral leases case. The Chief Justice of Australia then spoke of the dangers of such sustained attacks on the judiciary at a series of legal conferences in Australia and overseas. From the United States, one Kathryn Graham wrote to the Australian press to condemn the disappointing lack of understanding of the role of the court. The Chief Justice of New South Wales, in October 1997, called for a truce and for mutual respect between the branches of government. But the debate and the attacks go on. The feature of the Australian debate that has concerned many lawyers has been the complete shift from the bipartisan political acceptance of constitutional and other important decisions of the Court which had marked Australia’s history in the past, even when those decisions were extremely important and controversial. There is also the concern that such an unchecked criticism would undermine confidence in the courts and acceptance of court decisions. There might be this argument putting forward that robust legal debate is good for the country. But a lot of judges and lawyers, unused to such unrelenting assaults, had their doubts14. However, in a free society, criticism of the judiciary is inevitable and some attention to the courts and their doings is both justifiable and desirable. The problem is about measuring the acceptable amount of criticism. In recent years, governments in the various states have resorted to appoint acting judges from the ranks of legal practitioners, academics and retired judges. This in principle would lead to serious problems. Judicial independence is at risk when future appointment or security of tenure is within the area of the executive. The practice of appointing acting judges rather than supplementing the permanent establishment of the judiciary is questionable because their reappointment or permanent appointment is at the discretion of the AttorneyGeneral and Cabinet. This practice can be said to be similar to the Malaysian method of appointing judicial commissioner without the security of tenure. This clearly lacks judicial independence in the accepted sense. This trend is a justified cause for concerns. However, it is admitted that most who accepted part-time or temporary appointment would not be influenced in their decisions by the lack of guaranteed tenure. There is a question then of those who accepted a permanent appointment. This would lead to pressures when confronted with decisions that are potentially upsetting to the government. These pressures should not be
12 13 14
Bede Harris, A New Constitution for Australia. Michael Kirby, Attacks on Judges: A Universal Phenomenon. Michael Kirby, Attack on Judges: A Universal Phenomenon.
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imposed on decision makers.
THE MALAYSIAN JUDICIARY
Malaysia is a federation of thirteen states. The supreme law of the federation is the Federal Constitution. The Constitution provides for the exercise of judicial power in the Federation. These are stated in Articles 121 to 131A of the constitution. Malaysia has a single structure judicial system consisting of two parts, the superior courts and subordinate courts. The subordinate courts are the Magistrate’s Courts and the Sessions Courts. The superior courts are the two High Courts of co-ordinate jurisdiction and status, one for West Malaysia and the other for the Borneo states of Sabah and Sarawak, the Court of Appeal and the Federal Court. Both the Magistrates’ Court and the Sessions Court have wide criminal and civil jurisdiction. Apart from having civil and criminal jurisdiction, the High court has appellate or revisionary jurisdiction in respect of criminal matters decided by a Magistrates’ Court, a Sessions Court and hears appeals in civil cases from the Magistrates Court and Sessions Court. The Court of Appeal has appellate jurisdiction to hear both civil and criminal cases originating from the High Court or, in criminal cases from the Sessions Court. In addition, it may, with leave, hear appeal against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court on questions of law. The Federal Court has jurisdiction to determine appeals of decisions of the Court of Appeal and High Court. It has certain original or consultative jurisdiction as specified in Articles 128 and 130 of the Federal Constitution and other jurisdiction as may be conferred under Federal law as stated in Article 121(2) of the Federal Constitution. None of these courts has jurisdiction in respect of any matter within the jurisdiction of the Sharia (Islamic law) Court15. Because the administration of justice is a federal matter, there is a large amount of uniformity in the administration of justice between the states even though there are two High Courts of co-ordinate jurisdictions. The only state courts existing in Malaysia are the Syariah (Islamic) Courts and the native courts of the Borneo states of Sabah and Sarawak. All judges are appointed by the Monarch acting on advice of the Prime Minister according to Article 122B (1) of the Federal Constitution. Before tendering his advice on the appointment of judges other than the Chief Justice, the Prime Minister is required to consult the Chief Justice according to Article 122B(2). For the appointment of the Chief Judge of the High Court of Malaya and Borneo, the Prime Minister has to consult the respective heads of those courts. The judges, in practice are appointed from either the Bar or the Judicial and Legal Service. Under Article 132(1) of the Federal Constitution, the Judicial and Legal Service is a public service answerable to the Judicial and Legal Service Commission of which the Attorney General, or is some circumstances the Solicitor General is a member. Currently a majority of the judges in the superior courts were appointed from the Judicial and Legal Service. Judges in the subordinate courts are drawn from almost entirely from the Judicial and Legal Service. An employee of the Judicial and Legal Service will spend time in each of its department. Therefore, an employee could be a prosecutor one day and a magistrate the next but in either capacity would still is part of the same service and answerable to the Judicial and Legal Service Commission. The recruitment of judges from this body is a strong cause for concern. The frequent interchange of judges and prosecutors from the same service raise doubts as to their independence. Administrative independence has not been a part of the Malaysian judiciary. The courts do not control their own budgets. Judicial personnel in the courts are often appointed from legal officers and prosecutors. This gives rise to the question of the judges’ security of tenure. Article 122 of the Federal Constitution was amended to allow appointment of judicial commissioners ‘with powers to perform such functions of a judge of the High Court as appear to him to require to be performed…’ Normally appointed on contract for an initial term of two years, a judicial commissioner would then be recommended for appointment as a judge of the High Court if found to have served satisfactorily. The Lord President (Now titled as Chief Justice after 1994) would then make his recommendation to the Prime Minister16.It is not clear on what basis judicial commissioners are appointed. The fact that a judicial commissioner is a probationary judge and without any security of tenure, his or her ability to be independent and not subject to external influences in making judicial decisions is very much questionable. The practice of
15 16
Justice in Jeopardy: Malaysia 2000. Raja Aziz Addruse, Judicial Appointments: Who Has the Last Say.
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appointing judicial commissioner should be discontinued. Judicial commissioners do not have the security of tenure necessary to ensure their independence. Appointment of judicial commissioners is arguably not consistent with the requirement of an independent judiciary. In the early days of independence, the judges of Malaya, because all of them had their training in England where Parliament and not the Constitution is supreme, seemed to have philosophical difficulties in accepting their new role as guardians of the Constitution17. They are still not used to the idea of being guardians of the written constitution and until now are still more familiar with the notion of parliamentary supremacy rather than constitutional supremacy. This initial inability to recognise constitutional supremacy led to the weakening of the judiciary. Even though the Federal Constitution stated the principle of constitutional supremacy, the judges at that time were more familiar with the British tradition of parliamentary supremacy. Parliamentary supremacy is effective in England because the powers of the three branches of government are kept in balance by the monarch who has wider prerogative powers compared to the Malaysian Monarch. Constitutional amendments have reduced the position of the Malaysian Monarch as a mere figurehead. In reality, the British system of balance of power does not have its Malaysian equivalent. The Malaysian judiciary was intended to enforce the checks and balances in the Constitution. The failure of the judiciary to grasp its role as guardians of the Constitution, unlike its Australian counterpart, led to its independence to be undermined by the executive body in the subsequent years18. The Malaysian court holds a positivist view and conservative pragmatism. Although the court is ready to uphold certain fundamental liberties such as proprietary rights, but it is of the view that personal liberty should be put aside to the overriding need of national stability, order and security. Before 1988, Malaysian judiciary was well respected within the British Commonwealth of Nations for its integrity. From 1957 until the mid-1980s, the Malaysian judiciary built for itself a reputation of being independent and impartial and held a high public esteem. There was, it seems, no accusation of judicial improprieties, corruption, bias or judicial misconduct during this period. After independence, there is still a right of appeal to the Privy Council if one was aggrieved by the decision of the Federal Court. But as time passed, fewer and fewer appeals were referred to the Privy Council and were taken as an indication of the public satisfaction and appreciation of the competence of the Malaysian judiciary. Finally, it was decided towards the end of the 1970s that this right of appeal to the Privy Council be discontinued. The Federal Court in the early 1980s became the final Court of Appeal in Malaysia, and was renamed the Supreme Court. After the 1988 constitutional crisis where the head of judiciary was removed, the Malaysian judiciary’s independence was severely compromised. The constitution was amended to transfer the judicial power of the Malaysian Federation from the judiciary to the parliament. The judiciary now has limited powers as the parliament sees fit to give. The executive dissatisfaction with the judiciary began with the then Supreme Court’s decision in JP Berthelsen v. Director General of Immigration Malaysia & Ors19 in 1986. An American staff correspondent attached to the Kuala Lumpur office of the Asian Wall Street Journal had been granted a two-year employment pass valid until November 2nd 1986. On September 26th 1986, he was served with a notice of cancellation of his employment pass under the Immigration Regulations 1963. The notice stated that the Director-General of Immigration was satisfied that Berthelsen had contravened or failed to comply with the Immigration Act 1959-63 and the Immigration Regulation 1963. Therefore, his presence was prejudicial to the security of the country. He sought leave from the High Court for an order of certiorari to quash the cancellation of the employment pass. When the court refused to grant leave, he appealed to the Supreme Court. The Supreme Court held that Berthelsen was lawfully in the country; under an employment pass validly issued for a specified period and that he had a legitimate expectation to be entitled to remain in the country. The Court concluded that Berthelsen had not been given the opportunity to make representation
17 18 19
Tommy Thomas, Human Rights in 21st Century Malaysia. Poh-Ling Tan, Asian Legal Systems. [1987] 1 MLJ 134.
6
regarding the cancellation of his employment pass. The court then gave an order of certiorari. The Prime Minister at that time remarked in the parliamentary debates that the laws clearly stated that the Minister could decide how long a foreigner could stay in the country and that this decision was final. He said that the “judge overruled this. That was a well-known case. The person was allowed to stay here and the Minister could not do anything”20. This clearly shows that the executive did not understand the role of the judiciary. The previous three prime ministers before him were trained as English barristers and therefore understood and had respect for the nature of the judiciary. The Supreme Court’s decision in Public Prosecutor v Dato’ Yap Peng provoked the Prime Minister to bring about change undermining that decision when the Parliament enacted the Constitution (Amendment) Act 1988. In this case, the accused was charged with two counts of criminal breach of trust. When his case was mentioned again in the Sessions Court, the Deputy Public Prosecutor tendered a certificate under section 418A of the Criminal Procedure Code. The President of the Court transferred the case to the High Court. When the accused was charged again in the High Court on the same two charges, there was an objection against the transfer of the case from the Sessions Court to the High Court. The High Court concluded that section 418A of the Criminal Procedure Code was unconstitutional on the grounds it infringed Article 121(1) of the Constitution which provides that “the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status…and in such inferior courts as may be provided by federal law”. The Supreme Court dismissed the Public Prosecutor’s appeal. The majority pointed out that what was under challenge was a power at any stage of the proceedings to effect the transfer of any particular case pending before a subordinate court competent to try it to the High Court. The court held that section 418A was both a legislative and executive intrusion into the judicial power of the Federation. As a response to this decision, the Constitution (Amendment) Act 1988 was enacted. One of its provisions sought to remove the vesting of judicial power of the Federation in the courts. It states that the High Courts and inferior courts “shall have such jurisdictions and powers as may be conferred by or under federal law”. The reputation of the judiciary was severely undermined by the events of 1988. In May 1988, 20 judges attended a meeting where they all agreed that the then Lord President write to the Monarch and other rulers, expressing their concerns regarding the public criticism of the judiciary by the executive. Due to this fact the Lord President was removed from office by a hastily convened tribunal after the Prime Minister made a representation to the Monarch by invoking the procedure provided under Article 125 of the Federal Constitution which states “If the Prime Minister…represents to the Yang di-Pertuan Agong [Monarch] that a judge of the Federal Court ought to be removed on the ground of misbehaviour…the Yang di-Pertuan Agong shall appoint a tribunal…and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office”. Several months before making the representation, the Prime Minister made statements within and outside the Parliament, criticising the judiciary and judges for various reasons. He was displeased that the judiciary construed the law in a manner unacceptable to him. Among those appointed to the tribunal, was the Chief Justice of the High Court, who was himself present at the meeting of the judges, and as second in seniority in the judicial hierarchy, would be appointed to the vacancy caused by the Lord President’s removal21. The presence of the Speaker of the Lower House, a politician as a member of the tribunal gave rise to the question of its impartiality. The choice and composition of the tribunal, the procedures followed by them and the broad definition of judicial misbehaviour adopted by the tribunal begs the question that these matters should have been spelt in greater detail and Article 125 as it was is not the safeguard for judges as it was intended to be22. When the Supreme Court granted an injunction prohibiting the tribunal from hearing the misconduct allegations, five Supreme Court justices were suspended (and three later removed), and the injunction was overturned. This was the greatest blow to judicial independence in Malaysian history. Around the same time, the federal Constitution was amended to remove the courts of the “judicial power of the Federation”, granting them instead such judicial powers as Parliament might allow them.
20 21 22
HP Lee, Constitutional Conflicts in Contemporary Malaysia. Poh-Ling Tan, Asian Legal Systems. FA Trindade, The Removal of Malaysian Judges.
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In 1994 in a move seen by many as a further downgrading of the judiciary, the office of Lord President was renamed Chief Justice of Malaysia, the chief justices of Malaya and Borneo renamed Chief Judge of Malaya and Chief Judge of Sabah and Sarawak respectively. The Supreme Court was renamed the Federal Court. In the same year the government gazetted a judges’ court of ethics to clarify the ambiguity that existed in Article 125 of the Federal Constitution, which allowed a judge to be removed for misbehaviour without defining what the term “misbehaviour”really means. Prior to the 1988 judicial crisis, the chairperson of the Malaysian Bar and other senior lawyers were consulted informally by the Lord President on the suitability of candidates before he made a recommendation for appointment as judges. After the crisis, this practice stopped. The head of the Malaysian judiciary no longer consulted the Bar Council chairman or other senior members of the Bar on the suitability of candidates he proposed to recommend for appointment. This is because the Malaysian Bar issued a strong opposition against the removal of the Lord President at that time. A fact-finding mission23 to Malaysia led by an international committee of jurist recommended several steps to improve the state of the judiciary in Malaysia. The executive in this case should recognise that its attack on the judiciary in the period leading up to 1988 is the root cause of the current problem. The executive should recognise the independent, constitutional position of the judiciary and have a proper understanding of what that involves. The executive’s failure to understand the role of the judiciary has caused the current position as it is today. The executive must not conduct its business as to interfere with the independence of the judiciary. The judiciary must act and be seen to act with complete independence from the executive. It would be useful to establish a judicial service commission to recommend judicial appointment. The interchangeability of lawyers and judges under the combined Judicial and Legal Service should cease to ensure the separation of powers and independence of the judiciary. To date, the Malaysian judiciary has not yet implemented these recommended steps.
CONCLUDING THOUGHTS
The significance of judicial independence is little understood24. Judicial independence is important because a free society only exist as long as it is governed by the rule of law. The rule of law is compromised when the independence of the judiciary is subverted. The judiciary has an important role in softening the effect of the laws through the interpretation and application of justice and equity. This arguably was the case as demonstrated in Berthelsen and Wik where the court ruled against the will of the executive. The erosion of judicial independence in Malaysia as was discussed should serve as a warning sign against the incursion of the executive into areas of the judiciary and prolonged confrontation between the executive and the judiciary. The case of the Malaysian judiciary clearly shows that an independent judiciary is a vulnerable institution. The Australian judiciary would very well take heed and ensure that it does not go down the path that the Malaysian judiciary has taken. It is clear that this significant divergence of attitude between Australia and Malaysia towards the judiciary and the notion of judicial independence are due to the cultures and society of these two nations. In Malaysia, the adaptation of the British constitutional theory is very much problematic. English law and constitutional notions are, to a certain degree, rooted within the Judaeo-Christian ethos. To transplant that into a country where the dominant cultural ethos is totally different would lead to conceptual and philosophical difficulty. Perhaps the reason why it was less problematic when the British constitutional theory is adapted in Australia is because of both nations’ shared cultural origins.
23 24
Justice in Jeopardy: Malaysia in 2000. Ninian Stephen, Why Judicial Independence?.
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BIBLIOGRAPHY
1. Peter A Williams QC, Judicial Misconduct, Pelanduk Publications, 1990 2. Kevin YL Tan, TM Yeo & KS Lee, Constitutional Law in Malaysia and Singapore, Malayan Law Journal Publications, 1991 3. HP Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press, 1995 4. Poh-Ling Tan (ed), Asian Legal Systems, Butterworths, 1997 5. Sharifah Suhana Ahmad, Malaysian Legal System, Malayan Law Journal Publications, 1999 6. Peter de Cruz, Comparative Law in a Changing World, 2nd ed, Cavendish Publishing, 1999 7. S Joseph & M Castan, Federal Constitutional Law: A Contemporary View, Lawbook Co., 2001 8. Suri Ratnapala, Australian Constitutional Law: Foundations and Theory, Oxford University Press, 2002 9. G Hassall & C Saunders, Asia-Pacific Constitutional Systems, Cambridge University Press, 2002 10. Bede Harris, A New Constitution for Australia, Cavendish Publishing, 2002 11. RA Hughes, GWG Leane & A Clarke, Australian Legal Institutions: Principles, Structure and Organisation, Lawbook Company, 2003 12. Bede Harris, Essential Constitutional Law, 2nd ed, Cavendish Publishing, 2004 13. Sir Gerard Brennan, ‘Judicial Independence’, The Australian Judicial Conference, Canberra, 2 November 1996 14. Justice Michael Kirby, ‘Attacks on Judges- A Universal Phenomenon’, American Bar Association section of litigation winter leadership meeting, Hawaii, 5 January 1998 15. Justice Michael Kirby, ‘Independence of the Judiciary- Basic Principle, New Challenges’, International Bar Association Human Rights Institute Conference, Hong Kong, 12-14 June 1998 16. Justice Michael Kirby, ‘Courts & Politics: Judicial Independence- Summing Up’, Yale Global Constitutionalism Seminar, Yale Law School, 16 September 2000 17. Justice Michael Kirby, ‘The Challenges to Justice in a Plural Society’, Commonwealth Lawyers’ Association Judicial Conference, Kuala Lumpur, 4 April 2002 18. Justice Michael McHugh, ‘Tensions Between the Executive and the Judiciary’, Australian Bar Association Conference, Paris, 10 July 2002 19. Sir Ninian Stephen, ‘Why Judicial Independence?’, The Centre for Democratic Institutions AsiaPacific Judicial Educators Forum, January 2004 20. Justice Michael McHugh, ‘The Strength of the Weakest Arm’, Australian Bar Association Conference, Florence, 2 July 2004 21. The International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, The Commonwealth Lawyers’ Association & The Union Internationale des Avocats mission report, ‘Justice in Jeopardy: Malaysia in 2000’ (17-27 April 1999) 22. GTS Sidhu, ‘Independence of the Judiciary’ (1976) Malayan Law Journal 9 23. FA Trindade, ‘The Removal of Malaysian Judges’ (1990) 106 Law Quarterly Review 51 24. Tommy Thomas, ‘Human Rights in 21st Century Malaysia’ (2001) XXX No. 2 The Journal of the Malaysian Bar 91 25. Dato’ Param Cumaraswamy, ‘Justice is not a Cloistered Virtue: Are Judicial Criticisms inter se Permissible?’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 3 26. Raja Aziz Addruse, ‘Judicial Appointments: Who Has the Last Say’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 43 27. Dato’ Param Cumaraswamy, ‘Parliamentary Action to Ensure the Independence and Good Administration of Justice’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 82 28. Chief Justice John Doyle, ‘The Well-tuned Cymbal’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 29. Daryl Williams, ‘Independence of the Judiciary- Some Federal Government Initiatives’, Fragile Bastion: Judicial Independence in the Nineties and Beyond
9
30. PH Lane, ‘Constitutional Aspects of Judicial Independence’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 31. Sir Anthony Mason, ‘The Appointment and Removal of Judges’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 32. Lord Justice Brooke, ‘Judicial Independence- Its History in England and Wales’, Fragile Bastion: Judicial Independence in the Nineties and Beyond
10
Bibliography: 1. Peter A Williams QC, Judicial Misconduct, Pelanduk Publications, 1990 2. Kevin YL Tan, TM Yeo & KS Lee, Constitutional Law in Malaysia and Singapore, Malayan Law Journal Publications, 1991 3. HP Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press, 1995 4. Poh-Ling Tan (ed), Asian Legal Systems, Butterworths, 1997 5. Sharifah Suhana Ahmad, Malaysian Legal System, Malayan Law Journal Publications, 1999 6. Peter de Cruz, Comparative Law in a Changing World, 2nd ed, Cavendish Publishing, 1999 7. S Joseph & M Castan, Federal Constitutional Law: A Contemporary View, Lawbook Co., 2001 8. Suri Ratnapala, Australian Constitutional Law: Foundations and Theory, Oxford University Press, 2002 9. G Hassall & C Saunders, Asia-Pacific Constitutional Systems, Cambridge University Press, 2002 10. Bede Harris, A New Constitution for Australia, Cavendish Publishing, 2002 11. RA Hughes, GWG Leane & A Clarke, Australian Legal Institutions: Principles, Structure and Organisation, Lawbook Company, 2003 12. Bede Harris, Essential Constitutional Law, 2nd ed, Cavendish Publishing, 2004 13. Sir Gerard Brennan, ‘Judicial Independence’, The Australian Judicial Conference, Canberra, 2 November 1996 14. Justice Michael Kirby, ‘Attacks on Judges- A Universal Phenomenon’, American Bar Association section of litigation winter leadership meeting, Hawaii, 5 January 1998 15. Justice Michael Kirby, ‘Independence of the Judiciary- Basic Principle, New Challenges’, International Bar Association Human Rights Institute Conference, Hong Kong, 12-14 June 1998 16. Justice Michael Kirby, ‘Courts & Politics: Judicial Independence- Summing Up’, Yale Global Constitutionalism Seminar, Yale Law School, 16 September 2000 17. Justice Michael Kirby, ‘The Challenges to Justice in a Plural Society’, Commonwealth Lawyers’ Association Judicial Conference, Kuala Lumpur, 4 April 2002 18. Justice Michael McHugh, ‘Tensions Between the Executive and the Judiciary’, Australian Bar Association Conference, Paris, 10 July 2002 19. Sir Ninian Stephen, ‘Why Judicial Independence?’, The Centre for Democratic Institutions AsiaPacific Judicial Educators Forum, January 2004 20. Justice Michael McHugh, ‘The Strength of the Weakest Arm’, Australian Bar Association Conference, Florence, 2 July 2004 21. The International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, The Commonwealth Lawyers’ Association & The Union Internationale des Avocats mission report, ‘Justice in Jeopardy: Malaysia in 2000’ (17-27 April 1999) 22. GTS Sidhu, ‘Independence of the Judiciary’ (1976) Malayan Law Journal 9 23. FA Trindade, ‘The Removal of Malaysian Judges’ (1990) 106 Law Quarterly Review 51 24. Tommy Thomas, ‘Human Rights in 21st Century Malaysia’ (2001) XXX No. 2 The Journal of the Malaysian Bar 91 25. Dato’ Param Cumaraswamy, ‘Justice is not a Cloistered Virtue: Are Judicial Criticisms inter se Permissible?’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 3 26. Raja Aziz Addruse, ‘Judicial Appointments: Who Has the Last Say’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 43 27. Dato’ Param Cumaraswamy, ‘Parliamentary Action to Ensure the Independence and Good Administration of Justice’ (2002) XXXI No. 4 The Journal of the Malaysian Bar 82 28. Chief Justice John Doyle, ‘The Well-tuned Cymbal’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 29. Daryl Williams, ‘Independence of the Judiciary- Some Federal Government Initiatives’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 9 30. PH Lane, ‘Constitutional Aspects of Judicial Independence’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 31. Sir Anthony Mason, ‘The Appointment and Removal of Judges’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 32. Lord Justice Brooke, ‘Judicial Independence- Its History in England and Wales’, Fragile Bastion: Judicial Independence in the Nineties and Beyond 10
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