RELATIONSHIP BETWEEN JUDICIARY AND EXECUTIVE

The sentinels of this power need to be granted permanent tenure in order to exercise their
judicial power in a manner compatible with the constitutional government. A judge should
not be subject to retaliation when exercising judicial power against the state. Those who
challenge the abuse of power by the government must be assured that an independent and
impartial adjudication will be made. A government's whims and fancies cannot simply
remove a judge according to their whims and fancies in order to secure the public's trust in
the independence and impartiality of the judges.

A constitutional government enshrines the protection of judges by providing them with

tenure, which can take various forms. In general, some constitutions have opted for a tribunal
system for removing judges; others have opted for the parliamentary removal process. The
Malaysian Constitution provides for the removal mechanism in Article 125. Contrary to the
recommendations of the Reid Constitutional Commission, which had recommended the
parliamentary removal system, the Merdeka Constitution adopted the tribunal removal
system. The provisions of Art. 125 require the following; There is a representation is made to
the King by the Prime Minister or by the Chief Justice after consulting the Prime Minister;
the removal must pertain to a breach of the prescribed code of ethics or inability, from
infirmity of body or mind or any other cause, properly to discharge the judicial functions; a
tribunal is appointed by the King and the representation is referred to it; the tribunal makes a
recommendation, and the King may, on the recommendation, remove the judge.

The Constitution defines the composition of the tribunal and specifies its powers. The
committee will need to include no less than five judges who are serving or have served on the
Federal Court, Court of Appeal, or High Court". A king may also appoint persons "who hold
equivalent offices in any other part of the Commonwealth if he believes that doing so is
expedient for the king". The Constitution also authorizes the command of precedence amidst
the tribunal members, namely that no abolition mechanism will be wholly effective in
ensuring an unbiased or speedy determination if the matter is surrounded by political
undertones. However, there can be no guarantees that these safeguards will work so long as
those who form the checks and balances are willing to do so. In opting for the removal
mechanism in Article 125, the framers did not commit a mistake; they're the mistake lay in
the assumption that the executive arm of government would subscribe to the rule of law.
It is very difficult to safeguard completely against the "frailty and weakness of human
nature," as proposed by the tribunal. A possible reform that should be considered is to
amalgamate both the tribunal and the parliamentary abolition procedures. Article 125 could
be amended to alter the role of the tribunal from one which decides whether there was
disobedience to one which dictates the facts and for Parliament, in the light of the declared
facts, to determine whether they are ample to constitute one of the specified grounds to justify
removal. In light of Parliament's determination, the King would then remove the judge.

In appointing judges, a government owes a duty to the people to ensure appointees of the
highest caliber. Judicial independence can also be subverted by the appointment of people
who do not possess an outstanding level of professional ability, intellectual capacity,
experience, and integrity, and who cannot shake off a sense of gratitude to the appointing
authority. It is not in the interests of the people to have their judicial tribunals reduced to
timorous institutions. The Judicial Appointments Commission was set up under the Judicial
Appointments Commission Act 2009 (JAC Act) to assist the Prime Minister (PM) in advising
the Yang di–Pertuan Agong (YDPA) on the appointment of judges of the Superior Courts and
judicial commissioners, including the appointments of the Chief Justice, the President of the
Court of Appeal and the Chief Judges of the two High Courts. All judges of the Superior
Courts must retire when they reach 66 years old, or not later than six months after they reach
66 years old if the YDPA consents. However, a judge can resign at any time by informing the
YDPA in writing.

Thus, sober thought must be given to the fact that avenues have been provided whereby an
unscrupulous party coming into power could deal a sad blow to the independence of the
judiciary.