20
by Param Cumaraswamy
1988 was the year of infamy
for the independence of the
Malaysian judiciary. It saw the
might of executive aggression
on the then internationally
respected judiciary of the
nation. Article 121 of the
Constitution was amended
to remove the judicial power
from the courts with lightning
speed by the Dewan Rakyat
while senior opposition
members of Parliament
remained detained under the
ISA. One tenth of the electorate
was not represented in the
Dewan Rakyat when that
amendment was debated and
the Bill passed within two days.
That was followed by the
suspension and removal of
the Lord President, Tun Salleh
Abas, and five independent
Supreme Court judges of
whom two were removed on
the findings of two tribunals
set up under Article 125 of the
Constitution.
Since then many judges
remained intimidated and
threatened and at least three
chief justices’ integrity were
called into question. Judicial
misconduct and allegations of
judicial corruption were not
addressed by the competent
authorities. Some courageous
judges were sidelined
for promotions. Judicial
independence continued to
deteriorate and public and
investor confidence was
severely affected.
However, since 2004
when Datuk Seri Abdullah
Ahmad Badawi took over the
premiership, judicial reforms
were promised, among others,
to strengthen the integrity of
public institutions. However,
they remained mere rhetoric
until the exposure of the
Lingam video clip and the
resultant calls for firm action
and realistic reforms.
The prime minister set
up the Royal Commission to
inquire into the Lingam video
clip. Coincidentally, exactly
two decades after the year of
infamy the judiciary was once
again in the spotlight, this time
addressing the damage done
and needed reforms. The Royal
Commission findings and
recommendations are yet to be
implemented. The six judges
who were tribunalised in 1988
received ex-gratia payments
for their losses.
The government tabled two
Bills this month in the Dewan
Rakyat directly affecting
the judiciary – the Judicial
Appointments Commission
(JAC) Bill and the Judges’
Ethics Committee (JEC) Bill.
These Bills in addition to the
Malaysian Anti-Corruption
Commission Bill (MACC)
and the Witness Protection
Bill received much public
attention.
The JAC Bill was tabled on
Dec 12 and with undue haste
was passed by the Dewan after
just two days debate despite
serious concerns expressed
over its constitutionality. The
JEC Bill was deferred for
debate at the Dewan’s next
session in February. When
introducing the JAC Bill for its
first reading in the Dewan the
prime minister was reported
to have said “it would restore
public and investor confidence
in the judicial system”. On
the passing of the Bill, he was
reported to have been “elated”
and “jubilant” and said, among
others “we proved that we can
do it without amending the
Constitution”.
That the majority in the
Judicial reforms must meet
test of constitutionality
The Dewan Dewan Rakyat could ignore the
Rakyat must concerns expressed and rush
be more through the Bill even amid
vigilant when the Opposition’s support to
considering provide the two-thirds majority
the Judges’ for appropriate constitutional
Ethics amendments is beyond belief.
Committee When this Bill comes into
Bill 2008. force, there will be in place
two procedures for judicial
selections and appointments to
the superior courts of Malaysia.
One under Article 122B of the
Constitution and the other
under the JAC Act. Under the
The JAC Bill provides for a procedure whereby nine
members including the four heads of the superior courts
collectively select and report to the prime minister on
suitable candidates for judicial appointments. It also
provides for advice on judicial promotions.
former there is a consultative
process provided for the
prime minister to consult on
appointments individually the
various heads of the Federal
Court, Court of Appeal and High
Courts (the four heads) for the
respective courts. There is also
provision for consultation with
the Conference of Rulers.
The JAC Bill provides
for a procedure whereby
nine members including the
four heads of the superior
courts collectively select and
report to the prime minister
on suitable candidates for
judicial appointments. It also
provides for advice on judicial
promotions.
The government’s
contention, gathered from the
debate in the Dewan, is that the
Incredible procedure under the JAC Bill
year on complements the procedure
under Article 122B and provides
screen greater transparency. In effect
and stage the commission will be the
pg 26-28 substitute for the present
consultative process between
the prime minister and the four
heads under Article 122B. In
that event, Article 122B should
have been amended to entrench
the commission process in place
of the present process with
the four heads individually.
A constitutional procedure
cannot be changed by an Act of
Parliament passed by a simple
majority. It violates article 159 of
the Constitution which provides
for a two-thirds majority vote.
Further, as the JAC Bill
affects appointments to the
High Court of Sabah and
Sarawak any amendment to
the Constitution affecting those
states without the concurrence
of the Yang di-Pertua Negri of
the two states would be void
under Article162(E)(2) of the
constitution. The passing of
the JAC Bill circumvents this
constitutional requirement.
There is another
constitutional flaw which is
apparent in the JAC Bill. It
empowers the prime minister
to amend the same legislation
within two years “for the
purpose of removing difficulties
or preventing anomalies” by
order published in the Gazette.
This power to amend the
substance of the legislation is
additional to the power given
to the prime minister under
another provision to make
regulations on the advice of the
commission for the purpose of
giving effect to the provisions of
the legislation. Delegating the
power to the executive to make
regulations to give effect to the
legislation is common and legal.
But empowering the executive
to amend the substance of the
legislation even for purposes
of removing difficulties arising
from the legislation impinges
on the doctrine of separation of
powers. It clearly violates Article
44 of the Constitution which
vests the “legislative authority of
the Federation” in Parliament.
Pursuant to Article 4 of
the Constitution the supreme
law of the federation is the
Constitution and any law
passed by Parliament “which
is inconsistent with the
Constitution shall, to the extent
of the inconsistency, be void”
While the JAC Bill provides
theSun
for the situation when “the
prime minister has accepted any
of the persons recommended
by the commission” it does
not expressly provide that the
prime minister must accept
the recommendations of the
commission. Neither does it
expressly provide for a situation
when the prime minister does
not accept the recommendations
of the commission. To provide
for such situations, the prime
minister could invoke his
amending power to provide for
such situations and thereby
legitimately abuse his powers.
Far from restoring public
and investor confidence in the
judicial system, the passing
of the JAC Bill in the present
content and form without
appropriate constitutional
amendments opens the gates
for constitutional challenges
before the courts. Judicial
appointments through the
process of the JAC would be
challenged. Judges appointed
under the JAC process may
remain insecure. In one
instance in 2000 in a Central
American country applying the
common law the appointment
of the chief justice was declared
void by the High Court on
grounds that the process of
appointment did not strictly
comply with the constitution.
Any amendment of the JAC Act
by the prime minister would
be challenged. As there is no
limitation period the challenges
could be at any time. In
adjudicating those challenges
before the courts, the four heads
of the judiciary and the federal
judge in the commission will all
have to disqualify themselves as
interested parties sitting in the
commission. Public and investor
confidence in the independence
of the judiciary will remain in a
limbo.
The Dewan Rakyat must be
more vigilant when considering
the Judges’ Ethics Committee
Bill 2008 which is deferred for
its session in February. That
Bill too has flaws including a
constitutional flaw. It defines
“Code of Ethics” as Code of
Ethics 2008 “when in fact there
is no such code.
In 1994 the constitution was
| TUESDAY DECEMBER 30 2008
amended and a new clause 3A
to Article 125 was provided.
This clause enables the King
on the recommendation of the
four heads of the judiciary after
consulting the prime minister
to prescribe in writing a Code
of Ethics. In the same year the
King prescribed a Code of Ethics
as the Judges Code of Ethics
1994 which was gazetted. Rule
2(2) of the code provides that a
breach of any provisions of the
code “may constitute a ground
for removal of a judge from
office”. In 2000, the code was
amended by Judges’ Code of
Ethics (Amendment) 2000.
It will, therefore, be observed
that the only Judges’ Code of
Ethics in existence today is that
of 1994 as amended in 2000.
Further, there are anomalies in
Article 125 of the Constitution
on the application of the code
which needs scrutiny and
amendment.
Article 125(3) singles out
for removal of a Federal Court
judge on ground of breach of
the code while Article 125 (3A)
provides that when a judge
has committed a breach of the
code and the chief justice is
of the opinion that the breach
does not warrant removal of
the judge the judge concerned
could be referred to a body
constituted under federal law
to deal with such breach. The
proposed JEC Bill maybe the
federal law referred to in article
125(3A) of the Constitution as
the JEC Bill expressly provides
that the committee will have
no jurisdiction over conduct
warranting removal of a judge
the procedure for which will
remain in Article 125 (3) of the
constitution.
The JEC Bill does not provide
for sanctions against the judge
when found in breach of the
code though the present Judges’
Code of Ethics 1994 provides
“ that breach of the code” may
warrant removal. However,
Article 125(3B) empowers
provision for sanctions other
than removal in the code.
Without providing for sanctions
in the code and empowering the
committee to impose one for a
breach the committee will be
seen toothless.
These various anomalies and
inconsistencies must carefully
be addressed by Parliament.
Amendment of Article 125 is
imperative to provide for the
JEC to function effectively.
The Judges’ Code of Ethics
1994 needs careful revision. In
this regard the internationally
recognised Bangalore Principles
of Judicial Conduct is worthy
of consideration for adoption at
least in part.
While a judicial
appointments and complaints
mechanisms are relevant
and important to secure
judicial independence and
accountability in a transparent
manner yet to be effective
these institutions must meet
the test of constitutionality.
The government’s continued
reluctance to amend Article 121
of the constitution to restore
the judicial power in the courts
does not demonstrate its leaders’
seriousness in strengthening
the judicial system. The
prime minister’s elation
and jubilation over having
passed the JAC Bill without
amending the constitution
may be seen as underlining
the government’s scant regard
for constitutionalism in
government.
Tomorrow: Year of
political tsunami