LAW487-CONSTITUTIONAL LAW II

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JUDICIAL
INDEPENDENCE
 Security of Tenure

Ensuring Insulation from politics

Judicial
Independence Contempt of Court

Judicial immunity
SECURITY OF TENURE

1.
2. DISMISSAL
APPOINTMENT
OF JUDGES
OF JUDGES
 a. Must be a citizen
Appointment
of Judges:
Qualifications b. 10 years preceding his appointment he
has been an advocate of those courts or
as under Art any of them or a member of the judicial and
123. legal service of the Federation…

The case of Dr Badariah Sahamid:

appointment as a judicial commisioner(JC)
 Art 121AB, Art. 122B(1),(2), (4),(3), Art. 123

Issue: The YDPA is required to act on the advice of

APPOINTMENT the PM, but only “after consulting the COR”..
122B(1)
OF JUDGES:
Procedure for The COR role is one of check and balance
Appointment
as under Art It has the power and duty to scrutinize, to call for
122B further information, to delay, to caution and to warn

However, it does not have the power to veto the

PM’s proposals.
Article 122B(1)(2) Judges of Fd Court, COA & both YDPA acting on advice of PM after
High Courts consulting the COR and CJ

Article 122B(4) Judges to Federal Court YDPA acting on advice of PM after

consultation with Chief Justice and
Chief Judges
Article 122B(4) Judges to COA YDPA acting on advice of PM after
consultation with Chief Justice and
President of COA
Article 122B(4) Judges to High Court YDPA acting on advice of PM after
consultation with Chief Justice and
Chief Judges of both High Courts
 APPOINTMENT:
❖ Art 125(1) – Retirement Age
Term of Service
– Retirement age is 66 years and can be
extended by 6 months by the YDPA

❖ Art 125(7) – Judicial Salaries

– Judicial salaries and other terms of
service, including pension, can be
improved but cannot be changed to
their detriment.
 Issue: Art 122B FC vs
JAC Act 2008
•The consultative procedures
The Judicial do not apply to the
Appointments appointment of temporary
Commission Judicial Commissioners.
(JAC) Act •122AB: JC are appointed for
2008 a specified period or
purpose by the YDPA on the
advice of PM after
consulting the CJ.
❖ Permanency in their tenure : they
cannot be removed from office by
parliament nor can be dismissed by the
DISMISSAL
executive. OF JUDGE
❖ Art 125 (3) and (4) explain on the
procedure for dismissal of a judge. :INTRO
“If representations are made to the YDPA
that a judge should be removed, the YDPA
may appoint a judicial tribunal of not less
that 5 local or Commonwealth judges,
either retired or serving, to investigate the
allegation and to make recommendations
on the case to the YDPA”
❖ The Tun Salleh’s episode- many flaws in
the law were detected.
■ 1. The representation must come from the DISMISSAL
PM @ from the CJ after consulting with the
PM OF JUDGE:
■ A judge can be tried for: PROCEDURE
❖ Breach of the Judicial Code of Ethics or
❖ On the ground of inability, from infirmity of
body or mind or any other cause, to
discharge the functions of his office
properly.
■ 2. The Judicial Tribunal:- DISMISSAL
❖ Under Art 125(4), the YDPA is obliged to OF JUDGE:
appoint a tribunal and refer the
representation to it and act only on the PROCEDURE
findings of the tribunal.
❖ JT needs to apply the common law rules of “
Openness, fairness and impartiality”

■ 3. Art 125(3) and (3B): after having reached

a decision, the tribunal can recommend the
dismissal of the judge or some other
sanction.
 To protect the judiciary against politically inspired
critisms.

Art 127 bars parliamentary discussions on the conduct

Insulation of judges, except where the motion is supported by
more than one quarter of the members of the House.
From Politics Art 125(6): The remuneration(wage) of judges is
charged on the Consolidated Fund and is thereby
excluded from the politically charged budget debate

Majlis Peguam v Raja Segaran a/l Krishnan [2005] 1

MLJ 15
 Art 126: The courts have power to punish for
contempt any person who interferes with the
administration of justice or challenges the dignity or
independence of the courts.

Any words/acts/publications that are calculated to bring

a judge into disrepute or to lower his/her authority or to
interfere with due course of justice or to the lawful

Contempt of process of the courts is punishable as contempt.

Court
Case: AG v. Pang Cheng Lian

AG v. Manjeet Singh Dhillon

 ► The FC is silent on the issue of judicial
immunity. Thus, other laws must be looked
into.
► To enable judges, counsel and witnesses to
speak and act fearlessly in the interest of
justice and to condemn inequity in

Judicial appropriate language without fear of being

sued or prosecuted.

Immunity ■ Sec. 11(1), Defamation Act:

■ Absolute privilege on reports of judicial
proceedings including pleadings, judgments,
sentences or findings.

■ Sec 6(3) of the Government

Proceedings Act: There is absolute
immunity in torts for all acts performed in a
judicial capacity.
 ■ The judges cannot be sued in the civil courts
or prosecuted in the criminal courts. He is
protected if he acts under the honest belief

Judicial that his conduct was within his powers.

■ Sirros v. Moore[1975]
Immunity ■ Immunity is not absolute and malice defeats
immunity.
 ANY
QUESTION?