Professional Documents
Culture Documents
social amelioration schemes to bring welfare to those who, for whatever reason,
are unable to actualize their freedoms and rights. The state must be committed to
the welfare, rights and dignity of its citizens.
In Malaysia, political stability, economic prosperity and welfare policies have
ensured that this dimension of the rule of law is well protected. But the existence
of corrupt practices often prevents welfare policies from assisting those they
were meant to help.
EFFECTIVE GOVERNMENT: The threat to the rule of law comes as much from
abuse of liberty as from abuse of power. The government must be capable of
enforcing law and order, preventing civil war, civil disorder and ensuring socioeconomic and legal justice. Crime should be controlled.
Citizens as well as officials should show fidelity to the law. They should respect
the results of the legal and electoral processes in which they have participated.
In Malaysia, the machinery of government is effective, if not always responsible
and responsive.
RULE OF LAW: DIFFICULTIES & DILEMMAS
In a rule of law society, judges play the critical role of enforcing the requirements
of legality, safeguarding human rights, controlling executive discretion and
providing an impartial and independent system of justice. This task is full of
challenges and painful dilemmas.
UNJUST LAWS: What if the law that comes before a court is unjust or clearly out
of tune with the felt necessities of the times? Rigid compliance with it will confirm
leftist criticisms that the judiciary goes through the formal motions of justice but is
actually part of the machinery for reinforcing societys inequitable status quo. In
such situations should judges interpret the law creatively to shade in moral
colours? From amongst a wealth of rules of interpretation should the judges
choose those rules that impose a literal, formal, and strict interpretation or should
they choose rules of construction that permit creativity and activism?
Given the fact that law is not always synonymous with justice, every judge, at
one time or the other is confronted by substantive or procedural laws that are
inequitable. He has to search within his soul as to his proper role. In such a
situation his support for the rule of law is much more than simply affirming and
mechanically enforcing the legality dimension. His task is complex, contradictory,
rich and multi-dimensional.
GAPS IN THE LAW: What if there are gaps or omissions in the law? Should
judges expand the horizons of human rights by reading into our Basic Law some
3
the momentous power and duty to review legislative and executive actions on the
ground of unconstitutionality. Article 4(1) declares in unmistakable language
that this Constitution is the supreme law of the Federation and any law passed
after Merdeka Day which is inconsistent with this Constitution shall, to the extent
of the inconsistency, be void. Article 162(6) permits the courts to invalidate or
modify pre-Merdeka laws that contravene the Constitution.
The implications of these provisions are that in Malaysia neither Parliament nor
the Government is supreme. Some core, constitutional values are safeguarded
against the power of elected assemblies. The courts have the power to
determine whether an enactment or statute is valid under the Constitution. The
citizen is entitled to go to the hallowed halls of the judiciary to challenge the
validity of any government action on the ground of unconstitutionality.
JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION: In an age of
expanding administrative activity, the courts are entrusted with the crucial duty of
ensuring that the bureaucracy stays within the limits of its powers. The legal tools
for achieving this aim are the notion of constitutionality, the administrative law
doctrine of ultra vires and the principles of natural justice. The principles of
constitutional and administrative law are backed up by statutory, common law
and equitable remedies. The most prominent public law remedies are the writ of
habeas corpus, the prerogative orders of certiorari, prohibition and mandamus,
the equitable relief of injunction and the common law remedy of declaration. 1
The power of judicial review is believed to be an inherent power of the courts.
The power exists even if not conferred by statute. It is implicit in the doctrine of
separation of powers. It is part of the theory of check and balance in common law
countries that the courts must ensure that every institution and every functionary
of the state must stay within the limits of its or his competence. It is on this basis
that the courts entertained the challenge to an emergency declaration in Stephen
Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238. In Sim Kie Chon v
Supt. of Pudu Prisons [1985] 2 MLJ 385 the exercise of the power of pardon was
litigated (though unsuccessfully) in the courts.
Deprivation of citizenship cases have attracted judicial scrutiny in cases like Lim
Lian Geok v Minister [1964] 1 MLJ 158. It is noteworthy that in all the above
examples, either the law did not confer on the citizens an explicit right of appeal
to the courts or the Constitution or the statute explicitly barred judicial review. But
the courts were not deterred from examining the constitutionality or vires or the
natural justice dimension of the administrative action. The judicial attitude is that
appeal may be excluded but review is still available. 2 Even if judicial review is
statutorily ousted, the administrative decision is final only if it is valid. An invalid
decision is a nullity and courts can interfere.3
1
A masterly discussion of these remedies in the Malaysian context is found in M P Jain, Administrative
Law of Malaysia And Singapore, 2nd edition, Chapters XIV to XV
2
For a distinction between appeal and review see M P Jain, supra, pp. 435-439
Viewing the issue of judicial review from the citizens perspective, it is arguable
that the right to go to the courts is an implied aspect of personal liberty in Article 5
and a constituent part of the promise of Article 8s equal protection under the law.
BALANCE WHEEL OF FEDERALISM: In the federal set-up of Malaysia, the
judiciary has been given the role of providing the balance wheel of federalism
by adjudicating disputes between the Centre and the States and the States inter
se.
SAFEGUARDING HUMAN RIGHTS: In the United Kingdom there is no written
Constitution and no judicial review of legislative and executive acts on the ground
of unconstitutionality. But in Malaysia the Constitution in Articles 4(1), 128(1), 130
and 162(6) explicitly confers on the superior courts the power and duty to
preserve, protect and defend the basic charter against all those who would lay
rash hands upon the ark of the Constitution.
The superior courts are the ultimate arbiter of disputes between the citizen and
the state. The courts determine the constitutional validity of executive and
legislative acts. They delineate the legal line beyond which the might of the state
cannot trump the rights of citizens. In a Constitution with a chapter on
fundamental liberties, the judiciary has been given the vital role of reconciling the
conflicting demands of power and liberty, freedom and responsibility and the
might of the State and rights of the citizens.
In Articles 5 to 13 several fundamental liberties are guaranteed to all persons.
Various other rights are enshrined in other parts of the Constitution. For example,
Articles 14 - 22 enshrine the right to citizenship. Article 119 confers the right to
franchise. Article 128 guarantees the right to go to the courts to seek judicial
review on constitutional grounds. Article 135 safeguards public servants against
arbitrary dismissal or reduction in rank. Article 147 protects pension rights. Article
151 grants some procedural safeguards to all preventive detainees.
INTERPRETING LAWS: The interpretive function of the courts requires judges to
interpret static clauses of the Constitution and statutes in such a way as to give
them life and meaning. If the law has ambiguities the judge has to remove them
by recourse to a wealth of rules of interpretation. Interpretation is an art in which
the golden rule is that there are no golden rules. Interpretation is influenced by
the judges perception of his role at the heart of the legal system.
In performing the interpretative task the judge may adopt a literal or a liberal
approach.
Literal approach: The strict constructionists believe that the Constitution
should be interpreted in accordance with the original intention of its framers. The
3
For a discussion of the engaging issue of exclusionary, ouster and privative clauses see M P Jain, supra,
pp. 536-553
plain language of the provision and its grammatical and ordinary sense should
be given effect. Deference should be paid to the enactments history.
In this spirit it was observed in Datuk Harun v PP [1976] 2 MLJ 116 that the court
is not at liberty to stretch or pervert the language of the Constitution in the
interests of any legal or constitutional theory, or even, for the purpose of
supplying omissions or of correcting supposed errors. Similarly, it was stated in
Jabar v PP [1995] 1 SLR 617 that any law is valid and binding so long as it is
validly passed. The court is not concerned with whether it is also fair, just and
reasonable
Liberal approach: On the other hand, the activists or legal realists argue that
the interpretive task is unavoidably creative because legal words do not have a
self-evident meaning. Expressions such as personal liberty, life, law,
property, adequate compensation, religion and emergency are not nicely cut
up and dried. It is for judges to give life and meaning to the cold letters of the law.
If the law has gaps, as it often does, the judge has to fill them by reaching out
beyond formal rules to principles, presumptions, doctrines and standards that are
part of the majestic network of law. If the law has conflicts, as it invariably does,
the judge has to set out on the task of bringing harmony and consistency where
none existed.
The judge has to make explicit what is merely implicit in the law. He has to
crystallise what is inherent. He has to adapt the law of a bygone era to the needs
of a developing and changing society. His interpretive task is creative, not
mechanical.
Further, the glittering generalities of the Constitution need to be interpreted
dynamically because a Constitution is not made merely for the generation that
then existed but for posterity. The static clauses of a constitutional instrument
cannot calculate for the possible change of circumstances. In the words of
Woodrow Wilson the Constitution is not a mere lawyers document: it is a vehicle
of life, and its spirit is always the spirit of the age. Judges have a duty to
determine, independently of any historical limitations, the contemporary, core,
constitutional values that deserve protection.
A pragmatic rather than dogmatic approach to the interpretation of the basic
charters provisions should be adopted. Judges should be receptive to the felt
necessities of the times and their interpretations should show suppleness of
adaptation to changing needs. They should adjust legal principles to changing
social conditions and should assist in social engineering.
Ronald Dworkin, an Anglo-American jurist recommends that interpretation should
be based on rights and principles. The provisions of the Constitution should be
viewed holistically in the context of the entire system of laws and with regard to
7
the moral principles, doctrines, standards and framework assumptions that are
implicit in the basic law. Interpretation should be morally charged and
constructive. Its fundamental purpose should be to safeguard textual as well as
non-textual rights, and to enforce constitutional constraints on the power of
government.
In this vein it was observed in the Singapore case of Ong Ah Chuan v PP [1981]
1 MLJ 64 that in a Constitution that purports to assure fundamental liberties, all
references to law refer to a system of law which incorporates the fundamental
rules of natural justice.
Instead of a literal construction, a purposive interpretation should be adopted.
The central concern should be with purposes, not meanings. In Liyanage v R
[1967] 1 AC 259 the Privy Council declared a statute unconstitutional not
because it infringed any express constitutional provision but because it
compromised judicial independence and was contrary to the constitutional
scheme of things. Likewise in Dato Yap Peng v PP [1987] 2 MLJ 311 a provision
of the CPC was invalidated because it conferred on the executive a power to
transfer cases which the court regarded as being part of the judicial function.
A Constitution differs fundamentally in its nature from ordinary legislation passed
by Parliament. Canons of construction applicable to ordinary statutes should not
be applied rigidly to constitutional instruments. In Dato Menteri Othman Baginda
[1981] 1 MLJ 29 the court expressed the view that on constitutional issues,
previous precedents need not be strictly followed. They must be subjected to a
situation-sense. Further, a Constitution being a living piece of legislation must be
construed broadly and not in a pedantic way with less rigidity and more
generosity than other Acts.
In Teh Cheng Poh [1979] 1 MLJ 50 it was observed that in applying constitutional
law the court must look behind the label to the substance. Thus the governments
labelling or description of a law as a piece of subsidiary legislation could not
camouflage the fact that it was an Ordinance promulgated by the Yang diPertuan Agong long after Parliament had come back to session and, therefore,
unconstitutional.
Determining whether statute is sui generis or pari materia: All strict
constructionists as well as some liberals are agreed that every Constitution is sui
generis a class by itself. It must be interpreted within its own four walls and
according to the nations prevailing conditions. Context must determine content.
In Loh Kooi Choon [1977] 2 MLJ 187 federal judge Raja Azlan Shah (as DYMM
Sultan Perak was then) said: Our Constitution now stands in its own right (its)
wording cannot be overridden by the extraneous principles of other
Constitutions. However, in contrast with the sui generis approach is the idea that
if two statutes are pari materia or sufficiently similar in their materials, then the
decisions in relation to one are relevant to the other.
8
Whether a statute is sui generis or pari materia with a similar statute is not
always self-evident. Judges have a subjective choice and much depends on what
result they wish to achieve.
Malaysian approaches: As in other countries judicial attitudes over the last 55
years have not been entirely consistent. Nevertheless, a few cautious
generalisations can be made.
The English philosophy of legal positivism seems to hold sway here even
though it has suffered setbacks in its own homeland. This philosophy treats
law as lex (enacted law), not jus (justice) and recht (right). It forbids judges
from examining the morality, justice and reasonableness of laws. It promotes
a literal and narrowly logical interpretation of the law and discourages a
purpose-oriented, moralistic or historical approach. It identifies law solely with
state action and denies legal validity to custom and morality. In Chiow Thiam
Guan [1983] 2 MLJ 116 the judge stated: The law may be harsh but the role
of the courts is only to administer the law as it stands. In Loh Kooi Choon
[1977] 2 MLJ 187 it was stated: The question whether the impugned Act is
harsh and unjust is a question of policy to be debated and decided by
Parliament, and therefore not fit for judicial determination. One wonders why
legal positivism should have such ready acceptance in an Asian society
where religion, system of ethics, customs, the family and other institutions
interact to preserve order and give direction to society?
In the area of fundamental rights the courts seem to have created gradations
among liberties showing preference for some liberties over others. Thus,
tenderness is shown for protection against double jeopardy and for the right
to property but personal liberty, equality, speech, assembly and association
are made to give way to the overriding need for stability, order and security. In
these areas, fundamental rights are treated as if they were ordinary statutory
rights subject to the power of an English-style, supreme Parliament.
9
The courts have generally shunned activism and have rejected many
landmark precedents from other countries that limit the powers of Parliament
e.g. that the basic structure of the Constitution cannot be tampered with;
and that Parliament can delegate but cannot abdicate.
However, in the last 20 years or so stirrings of judicial activism have been felt.
In cases like Tan Tek Seng [1996] 2 AMR 1617, Hong Leong [1996] 1 MLJ 46
and Sugumar Balakrishnan [1998] 3 MLJ 289, administrative law principles of
natural justice and reasonableness have been linked with the Constitution.
These laudable administrative law principles are now regarded as implicit
aspects of the constitutional guarantees to due process and equal treatment.
The courts have suggested that arbitrary powers and harsh penalties are
violations of equality before the law.
In recent cases, the expression life in Article 5(1) has been interpreted to
include the necessities of life like employment; the horizons of personal
liberty have been expanded to include the right to seek judicial review; and
ISA detainees have been freed because of denial of right to see a lawyer.
Clearly, the Constitution is moving from the peripheries to the centre. Some
judges, notably FCJ Gopal Sri Ram supplanted British common law with the
supreme Constitution as the fountain from which principles of judicial review
of administrative discretion flow.
Are these developments harbingers of a renaissance in constitutional law? Or
are they the proverbial first few swallows that do not a summer make? It
10
In the Likas election case, the Election Judge complained that he had been instructed on the phone by the
Chief Justice of the Federal Court to dismiss the application summarily. The learned and courageous judge
defied the instruction and went on to censure the conduct of the Election Commission : Haris Mohd Salleh
v Ismail Majin [2000] 3 MLJ 434.
5
The learned judge in Meor Atiqulrahman Ishak v Fatimah Sihi [2005] 5 MLJ 375 ruled that there was no
constitutional right to wear a serban to school despite the practice of the Holy Prophet of wearing a serban.
A police report was filed against him. No action in contempt of court was taken against the complainant.
6
In late 2007, a video clip emerged showing a prominent lawyer in conversation with a Datuk about an
elaborate scheme to broker judicial appointments and promotions with the help of a business tycoon and
several ruling party politicians: The Star, 22 September 2007, N4.
11
12
The words for the ten years preceding his appointment are not entirely clear.
Two contentious issues have washed up at our judicial shores. First, whether the
ten years preceding must be immediately preceding; or whether 10 years of
accumulated experience over a longer period of time would suffice. For example,
if an advocate and solicitor of eight years standing took time off from legal
practice to teach full time at a law faculty for a few years, does the break from
active legal practice cause him to forfeit the eight years as a legal practitioner? If
he is considered for a judicial post, should he serve another ten years at the Bar
or only two more to satisfy the 10-year requirement? For an appointment to the
Industrial Court (which is inferior to the High court), it has been held that the ten
years must be continuous.
A second contentious issue is whether the experience at the Bar must be in
active legal practice with a practising certificate or whether it is sufficient to be
called to the Bar ten years preceding the appointment? This issue is engaging
the Federal Court in the case of Prof. Dr. Badariah Sahamid who was appointed
a Judicial Commissioner on March 1, 2007. The learned Judicial Commissioner
had been called to the Bar in 1987 but she chose to immerse herself in teaching
and research. She served with distinction at the Faculty of Law at University of
Malaya as Dean and lecturer. She wrote law treatises. She was a member of the
professional qualifying board overseeing the CLP programme 12. It is arguable that
once called to the Bar she is lawfully an advocate of those courts and,
therefore, eligible for elevation to the Bench. It speaks badly of a legal system
and of the legal fraternity that there should be attempts to bar a distinguished
academician from the Bench because she imparted lawyering skills at the
Faculty but did not practice them in the courts. Many lawyers do neither. They
renew their certificates but rarely, if at all, appear in court.
3. METHOD OF APPOINTMENT: Around the world judicial appointments follow
one or more of the following procedures:
o Aspiring candidates apply or are nominated.
o A Judicial Nominating Commission scrutinizes the applications or nominations
and recommends two or three best qualified candidates to the executive.
o The executive makes the formal appointment.
o There is a procedure for confirmation by the Senate (as in the USA) or by
some other confirming body.
o In the USA, State judges are elected by the people.
In Malaysia after the passage of the Judicial Appointments Commission Act there
is now a special body to recommend names to the Prime Minister. Side by side
with this, Article 122B requires an extensive, multi-layered process of
consultation between the Prime Minister, senior-most judges, the Yang diPertuan Agong and the Conference of Rulers.
12
13
When a vacancy arises, other than to the post of the Chief Justice of the Federal
Court, the Prime Minister must take counsel with the Chief Justice: Article
122B(2). In addition, the President of the Court of Appeal and the Chief Judges of
the High Courts are consulted by the Prime Minister on appointments to their
courts: Article 122B(4). For the appointment of the Chief Judge of the High Court
in Sabah and Sarawak, the Chief Ministers of the States are also taken into
confidence: Article 122B(3).
The Prime Minister then advises the Yang di-Pertuan Agong. His Majesty is
required to act on advice but only after consulting the Conference of Rulers:
Article 122B(1). The Conferences role is one of check and balance. It has the
power and duty to scrutinize, to call for further information, to delay, to caution
and to warn13. However, it does not have the power to veto the governments
proposals. Consultation is not the same thing as consent. The Prime Minister has
a duty to give due consideration to the views of the Conference, the Chief
Justice, the President of the Court of Appeal, the Chief Judges of the High
Courts, the Chief Ministers of Sabah and Sarawak and the Judicial Appointments
Commission but none of them has the right to insist that his/its views must be
obeyed. How much weight must be assigned to each view is a matter of
constitutional convention and not of law.
4. SECURITY OF TENURE: Unlike civil servants, superior court judges have
permanency in their tenure. They cannot be removed from office by Parliament
as in the USA and UK. Nor can the executive dismiss judges summarily as was
the colonial practice in the days before Merdeka: Terrel v Secretary of State for
Colonies [1953] 2 QB 482.
Procedure for dismissal of a judge: Under Article 125 clauses (3) and (4), if
representations are made to the Yang di-Pertuan Agong that a judge ought to be
removed on the ground of breach of the Code of Ethics, inability from infirmity of
body or mind or any other cause to discharge the functions of his office, the Yang
di-Pertuan Agong may appoint a judicial tribunal of not less than five local or
commonwealth judges, either retired or serving, to investigate the allegation and
to make recommendations on the case to the King.
Under Article 125(3), the initiative for the appointment of the tribunal can come
from the Prime Minister (as in the case of the tribunal to try Tun Salleh in 1988) 14
or from the Chief Justice after consulting with the premier (as in the case of the
tribunal to try another five Supreme Court justices in 1988). The initiative must be
in the form of a representation to the King that a judge ought to be tried for one of
two reasons. First, for breach of the Judicial Code of Ethics. Second, on the
13
It is rumoured that in 2007, the Conference of Rulers rejected the Prime Ministers recommendation for
the vacant post of the Chief Judge of Malaya. The post remained vacant from January 2007 to August 2007.
See The Star, 11 August 2007, pages 1 & 3.
14
During the tragic episode, it came to light that the Yang di-Pertuan Agong was angered by the Lord
Presidents letter to him and had asked that Tun Salleh be sacked.
14
ground of inability, from infirmity of body or mind or any other cause, to discharge
the functions of office.
On receiving the representation, the King cannot act summarily or arbitrarily.
Under Article 125(4) he is obliged to appoint a tribunal and refer the
representation to it and act only on the findings of the tribunal.
Penalty: The tribunal can recommend dismissal under Article 125(3) or some
other sanction under Article 125(3B).
Suspension: Pending the report of the tribunal, the judge on trial can be
suspended from office in accordance with Article 125(5) and (9).
Composition of the tribunal: The Constitution admirably requires that judges must
be investigated by their brother or sister judges and not by the executive or the
legislature. The firm principle behind Article 125(3) and 125(4) is that judges must
be judged by their peers. Under Article 125(4) the tribunal must consist of no
fewer than five present or past, local or Commonwealth judges.
Proceedings before the tribunals: The Constitution is silent on the procedure to
be employed by the tribunal. The common law rules of openness, fairness and
impartiality should, therefore, apply. The tribunal is bound by principles of natural
justice to give to the accused a fair opportunity to answer the grounds on which
his removal is sought.
The Tun Salleh episode: The constitutional safeguards against unfair dismissal of
judges were severely tested in the tragic events of 1998 which shook the
judiciary. Many flaws in the laws were detected.
It was alleged that contrary to the constitutional scheme, the Yang di-Pertuan
Agong had taken the initiative to put Tun Salleh a before the tribunal? It is
alleged that the Yang di-Pertuan Agong was angered by the Lord Presidents
letter to him and had told the Prime Minister that Tun Salleh should be
sacked. It is submitted that though the initiative to try a judge must come from
the Prime Minister or the Chief Justice, there is nothing improper about the
Yang di-Pertuan Agong referring an alleged judicial misconduct to the Prime
Minister and to seek the premiers counsel on the matter.
It was noted that Article 125(4) is silent about the seniority of tribunal
members in relation to the judge to be tried. Several judges on the Tan Sri
Hamid tribunal to try Tun Salleh were rather junior in standing. A number of
very senior retired judges were available but were not picked. The law in
Article 125(4) is in contrast with the general rule laid down in Article 135(1)
and innumerable other statutes that members of a disciplinary board should
not be inferior in rank to the officer to be tried.
15
It is not clear why the Government appointed six (an even number) of judges
to the Tan Sri Hamid Tribunal? Was it, as alleged, to give to the Chairman,
Tan Sri Hamid, an extra casting vote in case of a tie?
The Speaker of the Dewan Rakyat (who was a former High Court judge) was
appointed a member. Besides his juniority as a judge at the time of his
retirement, his association with Parliament should have disqualified him. His
selection was a violation of the spirit of the Constitution that judges should be
tried by their peers.
The Chairman, Tan Sri Hamid, should have disqualified himself because he
participated in the Kuala Lumpur meeting that led to Tun Sallehs letter of
complaint to the King.
Tan Sri Hamid was also disqualified under the rule against bias nemo judex
in causa sua because as the Acting Lord President he would benefit from
Tun Sallehs removal?
In a matter as grave as the dismissal of the Lord President, it was necessary
that the accused Lord President be heard. He was invited to attend but
refused because of his objections to the composition of the tribunal. More
time should have been given to sort out the legal issues and the challenges
before the court. It was improper for the Tribunal to proceed in haste in the
absence of Tun Sallehs counsel.
It was improper for the High Court to delay the hearing of Tun Sallehs
application to the High Court for an injunction against the Tribunal.
It was improper for Tan Sri Hamid, Acting Lord President and Chairman of the
Tribunal, to interfere with the working of the Supreme Court registry when Tun
Salleh sought to apply for an urgent appeal to the Supreme Court against the
High Court refusal of his application for injunction.
It was improper for Tan Sri Hamid (the defendant in the case) to telephone
Justice Seah who was slated to hear Tun Sallehs application against the
Tribunal that was presided over by Tan Sri Hamid.
It appeared rather harsh for the King to suspend the three senior judges
(Justices Wan Sulaiman, Seah and Abdoolcader) who agreed to hear Tun
Sallehs petition. The judges were acting in the finest tradition of the judiciary
to hear out a complainant.
It appeared rather harsh for the second tribunal to dismiss Tan Sri Wan and
Tan Sri Seah for misconduct. Their misconduct was nothing but a simple
and courageous performance of a judicial duty to hear an urgent case.
It was also noted that the gilt-edged provision of Article 125(4) that judges
must be tried by their peers, results in the ironic situation that justices who
would benefit from the removal of the accused are allowed to sit in judgment
over him. This is a violation of the nemo judex in causa sua rule of natural
justice that a person should not be a judge in his own cause.
New procedure for lesser wrongs: On January 19, 2006, a new provision, Article
125(3A), was inserted to permit the Chief Justice to refer minor breaches of the
Code of Ethics to a body constituted under federal law to deal with such breach.
16
Representation to the King under Article 125(3) need not be made. A sanction
other than removal may be handed down.
What the composition of this new disciplinary body will be remains to be seen.
Will judges continue to be tried by their peers or will outsiders man the new
tribunal? What is clear is that due to the cataclysmic events of 1988 and the
consequent amendments to the Constitution, judicial conduct will remain in the
limelight.
Judges excluded from safeguards: Rules about security of tenure laid down in
Article 125 do not apply to several categories of judges and persons performing
judicial functions. Among them are: the additional judge of the Federal Court
appointed under Article 122(1A), Judicial Commissioners appointed for limited
durations under Article 122AB, judges of Sessions and Magistrates Courts (who
are answerable to the Judicial and Legal Services Commission under Article
138), Syariah court justices (who are appointed under state laws) and
chairpersons of statutory tribunals (whose terms of service and tenure are
derived from the enabling law that created the tribunal).
5. TERMS OF SERVICE: Alexander Hamilton once wrote that next to
permanency of office, nothing can contribute more to the independence of the
judges than a fixed provision for their support In the general course of human
nature, a power over a mans subsistence amounts to a power over his will.
In Malaysia superior court judges enjoy terms of service that are more favourable
than those of civil servants. Under Article 125(1) their retirement age is 66 years
and can be extended by six months by the Yang di-Pertuan Agong. In mid-2007,
the Chief Justice, Tun Ahmad Fairuz is reported to have written to His Majesty for
an extension of his term that was to expire on October 31, 2007. The extension
was not granted despite the belief that the Prime Minister was in favour of the
extension.
Under Article 125(7), judicial salaries and other terms of service including
pension can be improved but cannot be changed to their detriment 15. Under
Article 122C the Yang di-Pertuan Agong cannot transfer a High Court judge
except on the recommendation of the Chief Justice who, in turn, consults the
Chief Judges of the High Courts.
But in the matter of promotion, seniority is not always taken note of. This
contrasts with countries like Pakistan where disregard of seniority is seen as
executive interference with judicial independence. Promotions are in the hands of
the King who acts on the Prime Ministers advice after consultation with the
Conference of Rulers. The PM in turn consults the Chief Justice, the President of
the Court of Appeal and the Chief Judges of the High Courts on appointments to
their courts: Article 122B.
15
17
18
Sadly, there is a darker side to the law. Rules governing contempt of court
shackle the media. In a criminal case a few years ago the law impeded a defence
lawyer from introducing evidence that the judge regarded as contemptuous. In
scores of instances lawyers accusing judges of misconduct or bias have ended
up being convicted for scandalising the judiciary. In Majlis Peguam v Raja
Segaran [2005] 1 MLJ, the Bar Council was restrained by the courts from
discussing the alleged misconduct of the then Chief Justice at an EGM in June
2000.
It is, therefore, necessary that the law be viewed afresh to strengthen its
wholesome aspects and to reform those parts of it that are an affront to the very
concept of justice that the law is meant to uphold. It must be remembered that
justice must not be a cloistered virtue. She must be allowed to suffer the scrutiny
and respectful, even the outspoken, comments of ordinary men: Ambard v AG
for Trindad and Tobago (1936) AC 322 at 335. See also Lim Kit Siang v Dr
Mahathir [1987] 1 MLJ 49.
Definition: Any challenge to the authority and dignity of the judicial process is a
contempt of court. Any words or acts or publications that are calculated to bring a
judge into disrepute or to lower his/her authority or to interfere with the due
course of justice or the lawful process of the courts is punishable as a contempt.
Civil contempt: Contempt of court can be of two types. Civil contempt consists
of disobedience to a court order in a civil case or violation of an undertaking
given to the courts. A common ground for conviction is defiance of an order of
injunction. Any one who abets another to indulge in such disobedience or
violation is equally guilty of contempt.
Criminal contempt: This is a more complex and elastic area. It refers to the
manifold ways in which one can interfere with the administration of justice.
Thus, abusing or insulting a judge may amount to contempt in the face of the
court. Failure to respond to a court order to appear in person or to supply
documents or evidence; disobedience to a court order to expunge remarks or
information; disrupting court proceedings; or threatening or bribing witnesses,
lawyers or court officials can all amount to contempt of court. But the re-arrest of
a person who is acquitted or discharged or put free on habeas corpus is not a
contempt of court provided the re-arrest was for a different offence or under a
different law or on separate grounds: Lee Gee Lam v Timbalan Menteri Hal
Ehwal [1993] 3 MLJ 265.16
In AG v Pang Cheng Lian [1975] 1 MLJ 69 it was held that accusing the judge of
bias, partiality or of an unwillingness to listen to the truth amounts to a contempt
of court. In AG v Manjeet Singh Dhillon [1991] 1 MLJ 167 allegations that the
16
However, the rule against double jeopardy under Article 7(2) may apply.
19
Acting Lord President had tried to interfere with the administration of justice was
regarded as amounting to scandalising the court.
It must be noted, however, that judges and their decisions are not immune from
criticism or challenge. The law journals are replete with critical analyses of
judicial attitudes and reasoning. The criticism must not, however, be personal or
malicious. It must be in good faith. It must not impute improper motives or racial,
religious, gender or political bias. Above all, the criticism must be in temperate
and balanced language.
Prejudging a case by making gratuitous remarks on the guilt or innocence of the
parties or conducting a trial by media is a violation of the concept of imminent
and pending proceedings.
Tampering with witnesses, documents or evidence or any general attempt to
mislead the court can be caught by the law of contempt.
The categories of contempt are not closed and cannot be nicely cut up and dried
because the permutations of life are many and one cannot undermine the
ingenuity of wrongdoers who wish to disrupt the process of justice. For example
in an English case Balogh v St Alban Crown Court [1975] QB 73 - a group of
persons tried to inject laughing gas into the ventilation ducts of the court room in
order to liven up judicial proceedings. They were found guilty of contempt. On
being convicted one of the accused told the judge: you are a humourless
automaton. Why dont you self-destruct.
Perils of journalism: A section of society acutely affected by the law of contempt
of court is media practitioners. In their zeal to inform and entertain, they often
report judicial proceedings that have gripped the public imagination. But they
often transgress the thin line between factual reporting and commenting on the
merits of the case. Violation of the rule that no pre-judgments should be made on
a case that is imminent or pending has landed many journalists into trouble. In
England some decades ago an action on behalf of the thalidomide babies was
pending in the courts and an out of court settlement was being negotiated. The
drug company made a paltry settlement offer. The Times commented on the offer
in a damning way, accusing the drug company of not recognising its
responsibility for the tragedy. Though the motive for the published article was
most noble, the newspaper was found guilty of pre-judging the case and being in
contempt of court. AG v Times Newspapers [1974] AC 273.
Journalists have no special right to withhold their sources of information. If
summoned to appear as a witness, and required to disclose the source of their
information, journalists have no right to refuse even though that would
compromise their undertaking to the person who had supplied them the
information in confidence.
20
22
17
Some issues of Syariah law like Islamic banking, hajj, contracts as well as all crimes covered by federal
law are within the jurisdiction of the civil courts.
18
In Latifah Mat Zain v Rosmawati bte Sharibun [2007] 5 MLJ 101, Abdul Hamid FCJ, in a learned
judgement, listed 47 cases in which jurisdictional issues between syariah and civil courts were raised.
23
Refer to Ngan Tuck v Ngan Yin Hoi [1999] 5 MLJ 509; R Rama Chandran v The Industrial Court [1997]
1 MLJ 145; Sugumar Balakrishnan v Pengarah Imigresen [1998] 3 MLJ 289. Refer especially to the
admirable Court of Appeal judgment in Kok Wah Kuan v PP [2007] 5 MLJ 174. The Court of Appeal
asserted that the power of sentencing is a judicial power that must belong to the courts and must not, by
legislation, be vested in the executive. Section 97(2) of the Child Act 2001 purported to vest the sentencing
power in the hands of the King and was, therefore, unconstitutional. Regrettably, on October 23rd 2007 the
Federal Court overruled the Court of Appeal. But one judge, Richard Malanjum CJ (S&S) dissented
powerfully on the impact of Article 121(1). According to Richard Malanjum CJ (S&S) the judicial role
under the Constitution is far larger than slavish obedience to federal law. Article 121(1) does not convert
judges into robots obliged to do whatever federal law directs. Judges have wider constitutional duties which
no federal law can take away from them.
24
Federation. There is also the fact that despite the 1988 amendment, a large
number of statutes like the Courts of Judicature Act 1964, Specific Relief Act
1950, Criminal Procedure Code FMS Cap 6 and the Government Proceedings
Act 1956 continue to vest the superior courts with supervisory powers to issue
habeas corpus, certiorari, prohibition, mandamus, injunction, declaration, quo
warranto and other remedies.
Other judges have, however, adopted a literal view of Article 121(1). In
Pendakwa Raya v Kok Wah Kuan (2007), Abdul Hamid Mohamad, PCA,
speaking on behalf of four out of five judges 21 held that After the amendment,
there is no longer a specific provision declaring that the judicial power of the
Federation shall be vested in the two High Courts If we want to know the
jurisdiction and powers of the two High Courts we will have to look at the federal
lawnot on the interpretation of the term judicial power as prior to the
amendment and not what some political thinkers think judicial power is.
3. APPOINTMENT & PROMOTION: If need be, the law should be amended to
expand the circle of legally trained persons who are eligible to be elevated to the
Bench. Given the problem of quality at the Bench, it appears unwise to bar
distinguished academicians and legal officers in public corporations and statutory
bodies from being considered for appointment as Judicial Commissioners or
Associate Justices to handle specialized cases. A more diversified judiciary
should be created. At present the majority of appointees tend to be from the
Judicial and Legal Service and not from the Bar. This imbalance must be
corrected.
The extensive consultative procedures prior to appointment do not apply to the
appointment of temporary or part-time Judicial Commissioners. Under Article
122AB, they are appointed for a specified period or a specified purpose by the
King on the advice of the Prime Minister after consulting the Chief Justice. Does
the Judicial Appointments Commission Act apply to these appointments?
Regrettably direct appointments to the High Court have become rare and a stint
as a Judicial Commissioner is regarded as a probationary period for a full
appointment afterwards. This practice undermines the rules in Article 125 about
security of tenure22.
For purposes of promotion, a Performance Evaluation Programme could be
implemented to enable government and private lawyers to evaluate holders of
judicial office on the indices of integrity; knowledge and understanding of the law;
20
DPP v Mollison [2003] UKPC 6; Hinds v The Queen [ 1976] 1 AllER 353; Liyange v The Queen [1967] 1
AC 259; Special Courts Bill 1978, In re the AIR [1979] SC 478
21
Richard Malanjum, CJ (S&S) delivered a powerful, separate opinion on the impact of Article 121(1) and
how the amendment does not and cannot emasculate the courts.
22
For the learned views of Ranita Hussein, a former JC and SUHAKAM Commissioner, on this matter, see
The New Straits Times, April 7, 2007, p. 23.
25
applicant can file an urgent case against a Tribunal in which the Acting Lord
President is taking part? What if a judge has a private meeting with one of the
parties to a litigation behind the back of the other? What, if for corrupt
reasons, a judge conspires to dispose of a case in a particular way? The
criminal law against corruption undoubtedly applies. The question needs to be
posed whether the law of contempt of court should also apply?
Scandalising the courts is a clear case of contempt. But must this law also
extend to allegations unfounded though they may be against the AttorneyGeneral and public prosecutors?
An adequate procedure should be put in place to allow lawyers to submit
written applications requesting that a judge should be disqualified from
presiding over a case on grounds of bias or pre-judgment.
Summary punishment for contempt in the face of the court is a violation of the
rule against bias as well as of the rule of hearing. An unfettered power to act
as accuser, prosecutor and judge must cause uneasiness in any system of
civilised jurisprudence.
With jury trials now a matter of history, the concept of imminent and pending
proceedings may need to be relaxed. Most judges are sufficiently well
equipped by their professional training to be on their guard against allowing
outside comments to influence them.
Some safeguards must be incorporated into the law to protect a journalists
source of information except on clearly defined grounds of overriding national
interest.
Truth, fair comment and public interest must be recognised as defences
against a charge of contempt. In the law today, innocent dissemination is not
a defence. Neither is lack of criminal intent. The tendency of an act is
sufficient. In Murray Hiebert v Chandra Sri Ram [1999] the court held that in
cases of contempt, the relevant test is not real risk of prejudice to the
administration of justice but whether the offending statements are likely or
tend in any way to interfere with the proper administration of justice. There is
no reason why such an unhelpful test, long disregarded in the UK must still
haunt our jurisprudence.
In sum, the law must seek to achieve a better balance between the rights of
litigants and the power of the courts.
6. JUDICIAL IMMUNITY:
All immunities, whether partial or total, are a
departure from the cherished ideal of equality before the law enshrined in Article
8 of the Federal Constitution. For this reason all immunities must be kept as
narrow as possible and must always be subjected to rational and critical
appraisal.
If immunity is abused to speak untruthfully, negligently or maliciously; if a lawyer
or judge makes gratuitous defamatory remarks for reasons of personal rancour; if
counsel uses remote and trivial arguments to try to disqualify the presiding judge;
if during cross examination counsel berates, badgers and browbeats a witness
27
into submission or hurls insults and unfounded allegations at him, then one has
to ask whether the existing rules of immunity should be modified to prevent such
abuse.
Around the world, the law is moving away from feudal notions of immunity and is
calling for more and more accountability. It is in keeping with the times to suggest
that the presence of malice should defeat immunity.
7. FUSED JUDICIAL & LEGAL SERVICE: A fused judicial and legal service
creates the perception of lack of independence. A separation is desirable.
8. PARLIAMENTARY PRIVILEGES: To what extent courts can review the
exercise of the privilege jurisdiction of the Houses of Parliament/State
Assemblies remains a complex issue of law and politics.
9. NON-JUSTICIABLE POWERS: Many powers of the executive and the
legislature are non-justiciable. These pose problems for the theory of an
independent judiciary.
10. EMPANELLING OF COURTS: Questions have arisen about the unrestrained
power of chief judges to empanel their courts. A chief judge with the power to
pick and choose who should hear a particular case can exert a powerful
influence on the outcome. An extreme illustration of this situation is when the
Chief Justice of the Federal Court unconstitutionally invited a judge of the High
Court to sit with him on the Federal Court: Dato v Kanalingam v David Samuels
[2006] 6 MLJ 521.
11. ROYAL COMMISSIONS: Appointment of sitting judges to Royal
Commissions boosts the legitimacy of the Commission but raises issues about
the propriety of superior court judges accepting such appointments, especially if
extra income is involved.
In sum, though the Malaysian law on independence of the judiciary is detailed
and has many wholesome features, there remain some issues on which eternal
vigilance is needed.
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