Quo vadis independent judiciary?
By:Dr Navin C Naidu

An independent judiciary means little when the free market has reduced it to commodities available on sale to the highest bidder.

Arundhati Roy, Indian author

Some 500 lawyers recently marched to petition the government for the much-vaunted independent judiciary. Is an independent judiciary independent of the government, or independent from the government in the context of the separation of powers?

The ghosts of 1988 judicial putsch have overstayed. None of the magistrates, judicial commissioners and judges is selected and elected by the voters, but selected and appointed by the Executive. The paradox is that the Executive itself is voted into office in blatant obedience to Westminster.

The independence of the judiciary is teleological as long as the Federal Constitution grants Parliament, a co-equal organ of state, the power to investigate it under Article 127 Federal Constitution (FC), and to appoint judges under Article 122B.

The puzzle begins with Article 132(1)(b) FC that the judicial and legal service is part of the public services. Article 132(3)(c) says otherwise in that “the public service shall not be taken to comprise the office of judge of the Federal Court, the Court of Appeal or a High Court.”

The power, potency and privilege of interpretation has never experienced a better state of play than with these two conflicting provisions of Article 132 FC. One wonders whether the Reid Commission suffered from a poverty of imagination.

In Public Prosecutor v Khong Tang Khen [1976] 2 MLJ 166, and in Datuk Haji Harun Idris v Public Prosecutor [1977] 2 MLJ 155, it was held that courts, not Parliament, have the power to determine whether a law is arbitrary, unfair or unreasonable. Judicial power seemed intact and independent in the 1970s.

Article 121 FC was amended post-Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 when it held that Section 418A of the Criminal Procedure Code encroached on judicial power when applying Article 4(1) FC. The supreme law of the land supporting the independence of the judiciary seems to be on thin ice.

Recently appointed US Supreme Court Justice Brett Kavanaugh openly observed that “an independent judiciary is the crown jewel of our constitutional republic. The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” Sorry, Mr. Justice Kavanaugh, private judicial hallucinations are not palatable.

Legally trained minds must necessarily dwell on innovative legislation to carve out a permanent niche for total judicial independence. A constitutional amendment espousing non-interference from any source must be entrenched while underscoring the voters’ right to select and elect judges at the polls when they elect their MPs and state legislators.

Thereafter, an independent Judicial Oversight Council with the power of the purse, and police power, must take charge of total and absolute oversight. The Executive and Parliament must be constitutionally mandated to stay within the confines and bounds of their job descriptions if there is such a thing.

Judge-made law to iron out the wrinkles of a badly written law augments the ideal of an independent judiciary given the potency of Article 162(6) & Article 162(7) FC which our judges must be courageous enough to apply in all cases coming before it. Therein lies the problem. To what extent should a judge go to strictly abide by the tenets of this Article that most assuredly endorses judicial independence is a pointedly interesting question.

Likewise, Parliament is at liberty to introduce, modify and amend judge-made law to claim its law-making territorial independence. Some semblance of the separation of powers thus emerges giving credibility to democratic institutions.

The winds of change must blow away the archaic and anachronistic Westminster arrogance. Malaysian laws, rules, regulations, customs, mores, traditions (adat) must start becoming relevant to upstage British common law in favour of Malaysian personal laws seen through the 20/20 vision of section 3(1) of the Civil Law Act 1956.

The doctrine of the separation of powers is a quixotic European ideal that makes no political sense except as an animated conversation piece in social functions. At best, the three organs of state are inter-dependent constitutionally bound to enjoy a symbiotic relationship with one another.

Time for an Independent Judiciary Act buttressed by a constitutional amendment to reflect the felt necessities of the times for the proper functioning of the role of justice and the rule of law.

The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune. 

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