CHAPTER 3

RULE OF LAW & INDEPENDENCE OF THE JUDICIARY: SOME ISSUESShad Saleem Faruqi

RULE OF LAWThe rule of law is an ideal of good government and just constitutional arrangements. At its inception it merely implied a preference for law and order over anarchy and strife. But over the years the concept has acquired legal, political and economic implications. Today it overlaps with many other venerated ideals like those of limited government, constitutionalism, due process and just legality. Though a precise or comprehensive definition of the concept is not possible, a few central ideas that are at the heart of this dynamic ideal can be outlined.

LEGALITY: The rule of law requires that a society must be governed by a government of laws and not by a regime of arbitrary powers. There must be supremacy of laws. No person should be punished or made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts (Dicey). Government officials must show respect for the law and must observe the limits on their power.In Malaysia the existence of a supreme Constitution, the safeguards for an independent judiciary and the constitutional power of judicial review, are clear proof that the legal system was built to protect the rule of law. A regular system of independent courts has existed since independence. Laws are made by Parliament or its delegates. No one is deprived of life, liberty or property except under the law. No summary executions take place. The army and the police are under civilian control.

Administrative law principles of ultra vires and natural justice have grown stronger. Ouster clauses in many statutes have lost force. These developments favour the idea of a government under the law.

But laws like the (former) Internal Security Act, the Police Act, Printing Presses and Publications Act and the Official Secrets Act give unlimited power to the executive. Many non-reviewable and non-justiciable powers permit uncontrolled executive discretion.

JUST LEGALITY & HUMAN RIGHTS COMPLIANCE: Adherence to the law by the state is necessary but not enough. If the system of law is unjust and oppressive as in apartheid South Africa, then adherence to it can become an instrument of tyrannical rule. The rule of law insists on compliance with some substantive human rights values. The law that reigns supreme must honour and promote individual freedom and dignity. In this sense, the rule of law is different from rule by law. Rule of law expresses ideals about citizen-state relationships. The law must provide safeguards for liberty, equality and dignity. There must be limits on the powers of the state to restrict citizens rights. There should be no backdated criminal legislation. Democratic electoral procedures must be provided for by the law.

In Malaysia, the supreme Constitution and a large amount of legislation guarantee political and socio-economic rights. Their operation shows a mixed record. Elections are held regularly. The government is representative of the people. Opposition parties and NGOs are allowed.

But laws like the (former) ISA, Police Act and Printing Presses and Publications Act prevent citizens from exercising some of their rights. Articles 149 (on subversion) and 150 (on emergency) permit suspension of human rights.

CONTROLS ON ADMINISTRATIVE DISCRETION: All powers must be subject to limits. There must be controls on executive discretion so that discretionary authority does not degenerate into arbitrariness. Malaysian administrative law has matured tremendously over the last few decades. The principles/grounds of judicial review (ultra vires and natural justice) and the methods of judicial review (habeas corpus, certiorari, prohibition, mandamus, injunction, declaration and quo warranto) have expanded. But constitutional jurisprudence remains in its infancy. There is still a vast area of non-justiciability which is impervious to judicial review. IMPARTIAL AND INDEPENDENT SYSTEM OF JUSTICE: To enforce the rule of law, there must be an independent judiciary with the power to enforce its verdicts without fear or favour. The judiciary must be independent and free from extraneous pressures. It must be invested with all the necessary powers to interpret and enforce the law and to keep public authorities within the limits of their competence.SOCIO-ECONOMIC JUSTICE: Food is as important as freedom, bread as important as the ballot box. Legal guarantees of human rights are not enough. They must be accompanied by socio-economic and educational measures so that formal rights can find expression in reality and the individual can realize his dignity. There must be vigorous state support for socio-economic policies to help the weak, the oppressed and the marginalised. The state must be involved in 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 socio-economic 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 & DILEMMASIn 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 implied, un-enumerated, non-textual rights. For example could an expeditious trial be read as part of the guarantee of personal liberty in Article 5(1)? Could the need for legal representation for an indigent in a criminal trial be read into the constitutional ideal of equality before the law? CONSEQUENCES OF LAWS: What if desirable laws lead to undesirable results? For example, what if development policies benefit the entrepreneurs but devastate other members of society like the orang asli or the natives by depriving them of their essential basic needs? What if under a strict interpretation of the law, the affected communities have no locus standi? Should the rules of locus standi be liberalized? Should public interest litigation be permitted? In Nordin Salleh the court gave approval to the doctrine that in determining the constitutionality of legislation, judges can go beyond the formal content of the law to examine the actual consequences of the legislative measure. JUDGES HAVE NO MANDATE TO MAKE LAWS: Wherever the law is unjust, incomplete or leads to undesirable results, there are no simple, right answers about how judges should react to the problems at hand. On the one hand, a non-elected, non-political judiciary, wedded to the doctrine of separation of powers, cannot embroil itself in the vast task of law reform or social amelioration and must leave social justice to other organs of the state. On the other hand it must be acknowledged that there is a wealth of precedents from the USA, UK, India and even Malaysia where the judiciary has, through creative interpretation of the generic provisions of the Constitution, provided for implied rights; granted protection against race and gender discrimination; and condemned practices that marginalize the poor, the minorities, the disabled and the disadvantaged. ROLE AND FUNCTION OF A DEMOCRATIC JUDICIARYAt the functional level, the Constitution envisages a rich variety of functions for the courts in order to preserve the rule of law and constitutionalism in the country.ADJUDICATORY ROLE: The courts supply a dispute-resolving mechanism whenever the rights of citizens clash with the rights of other citizens or with the power of the state or when various organs of the state disagree over the scope and extent of their jurisdiction. Each peaceful resolution of a dispute affirms the triumph of law over naked power and fortifies the belief that in a civilised society differences need not be settled by the clash of arms or through trial by battle but by rational argument, evidence and proof.

PENAL FUNCTION: In the field of criminal law, the courts legitimise the application of institutionalised sanctions against transgressors of the law.

ENFORCING CONSTITUTIONAL SUPREMACY: In a country with a written and supreme Constitution which displaces parliamentary sovereignty, the courts have 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.

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. 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.

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 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 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 di-Pertuan 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.

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 principle of constitutional supremacy, boldly proclaimed in Article 4(1), is more notional than real. Over the last 55 years, Malaysian courts have shown extreme reluctance to invalidate parliamentary legislation on the ground of constitutionality. The judges seem to be steeped in the British tradition of parliamentary supremacy which has no legal basis here.

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?

The doctrine of strict separation of powers as propounded by the French philosopher Montesquieu has no application in Malaysia. Yet it is on this doctrine that judges often rely to justify their refusal to review executive and legislative acts: Mohd Yusof Mohamad v Kerajaan [1999] 5 MLJ 286. It is submitted that the motive force of the Malaysian Constitution is not in strict separation of, but in a balance amongst the various organs of State. Power of one organ was meant to check the power of another.

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.

Great reliance is placed on decisions of English courts. American and Indian precedents, which should be more persuasive because of similar supreme constitutions, are brushed aside as too idealistic. This preference for English decisions may have been justified in the early years after Merdeka when we were linked to Britain by an umbilical cord. It is not so now. 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. At the central government level a vast array of discretionary powers of the executive remain non-justiciable despite gallant efforts to convince the courts that arbitrary powers are an affront to constitutional supremacy and to equal protection under the law.

Issues of constitutional law are often reduced to issues of administrative law. For example in Persatuan Aliran v Minister [1988] 1 MLJ 442 the denial of a printing permit under the Printing Press and Publications Act was challenged as a violation of Article 10 (free speech), Article 8 (equality before the law) and Article 152 (Bahasa Melayu as official language). The court dismissed the constitutional issues summarily and went on to decide the case against the applicant on the principle of ultra vires in administrative law. 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 remains to be seen. We can only hope and pray as we salute 55 years of independence.GOVERNMENT PROCEEDINGS: Several statutes exist to permit and enable the citizen to take the Government to court. Under the Government Proceedings Act 1956, subject to some exceptions, the Government can be sued for breach of contract or for a tortious wrong as if it were a private person of full age and capacity. The Specific Relief Act 1950 permits the citizen to apply for a number of judicial remedies against the Government.

IMPORT OF BRITISH LAW: Sections 5 and 6 of the Civil Law Act 1956 permit judges wide discretion to import English common law, equity and statues into the legal system to fill lacunas in our laws. But this power is exercisable subject to such qualifications as local circumstances render necessary. Courts have wide discretion to import or to exclude British common law and statutes.In sum the role of the courts is one of multi-faced activism and creativeness.

INDEPENDENCE OF THE JUDICIARY

INDEPENDENCE FROM WHOM? In traditional constitutional theory, independence of the judiciary connoted independence from the political executive. We are now learning that a judges freedom of action can also be threatened by pressures from his superiors within the judicial branch. In addition, the challenge to judicial independence from the religious establishment is not unknown. There is also the danger of pressure or inducement from private, political and commercial centres of power.INDEPENDENCE FROM WHAT? Public confidence in the integrity, impartiality and independence of the judiciary is vital. Unfortunately, integrity and impartiality are personal attributes that no law can ensure. The Constitution can only provide some safeguards against interference. Whether the appointees will have the character, the courage and the intellectual capacity to soar above the timberline of the trivial, to transcend race, religion, and region and to cast aside prides, prejudices and temptations that afflict ordinary mortals cannot be guaranteed.

SAFEGUARDS: To promote public confidence in our system of justice, the independence of the higher ranks of the judiciary is guaranteed by the Constitution. To preserve judicial independence and integrity, Articles 121-131A of the Constitution incorporate several safeguards into the fabric of the law. 1. INSTITUTIONAL SEPARATION OF THE JUDICIAL BRANCH: Even thoughthere is no explicit mention of the doctrine of separation of powers in the Constitution, the overall constitutional scheme is to devise institutional as well as functional separation of the judicial organ of the state at least at the superior court level. Superior court judges are disqualified from membership of the executive or legislative branches. However, inferior court judges are members of the unified Judicial and Legal Service of the Federation.The existence of courts, the judicial hierarchy, and the jurisdiction and composition of the courts are prescribed by the law and are not open to tampering by the executive. The Constitution prescribes the maximum number of judges for the superior courts so that it is not easily possible for the government to pack the courts with political nominees. Under Articles 122, 122A and 122AA, the maximum numbers are prescribed. The maximum number of judges for the Federal Court is eight. For the Court of Appeal, it is eleven. The membership of the High Court in Malaya should not exceed forty-seven.

In the High Court in Sabah and Sarawak the number should not exceed ten.

However in a contradictory move the Constitution gives power to the King to increase the number of superior court judges. This may arouse suspicion that court packing is possible even though the intention of the law is to permit the King to increase judicial manpower to cope with the backlog of cases.

2. QUALIFICATIONS: The Constitution in Article 123 prescribes two formal rules of eligibility for appointment to the Federal Court, Court of Appeal and the High Courts. First, the nominee must be a citizen whether by operation of law, registration or naturalisation. Second, he or she must possess the minimum professional experience of being for the ten years preceding his appointment an advocate of (the) courts or a member of the judicial and legal service of the Federation or of the legal service of a State 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. 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:

Aspiring candidates apply or are nominated.

A Judicial Nominating Commission scrutinizes the applications or nominations and recommends two or three best qualified candidates to the executive.

The executive makes the formal appointment.

There is a procedure for confirmation by the Senate (as in the USA) or by some other confirming body.

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 di-Pertuan Agong and the Conference of Rulers.

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 warn. 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) 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 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. 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. 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. 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.

6. INSULATION FROM POLITICS: To protect the judiciary against politically inspired criticisms, Article 127 bars parliamentary discussions of the conduct of judges save on a substantive motion supported by not less than one quarter of the members. Under Article 125(6) the remuneration of judges is charged on the Consolidated Fund and is thereby excluded from the politically charged budget debate.

By statute judges are disqualified from membership of either House of Parliament or the State Assemblies. Conventionally they refrain from any activity that would draw them into controversy. But the rigor of this convention varies from country to country. In some like the UK, judges withdraw from public life. In others like Malaysia, judges retain links with social, sports and non-political organisations. This is not altogether a bad thing because contacts with societal organisations enable judges to be within hearing range of the pulse-beats of the nation.In Majlis Peguam v Raja Segaran a/l Krishnan [2005] 1 MLJ 15, the insulation of judges from politics was elevated to the status of a total immunity against criticism. The Bar Council had called an EGM in June 2000 to discuss allegations of impropriety allegedly committed by the then Chief Justice. The Court of Appeal held that the net effect of the EGM would be to censure the judiciary and to permit discussion of the conduct of His Majestys judges in flagrant disregard of Articles 125 and 127 of the Constitution. An open discussion of the conduct of His Majestys judges could amount to questioning the wisdom of the King in his selection. Openly criticizing the judiciary could bring about public misunderstanding of the system and would then produce unwarranted public misgivings. With all due respect, Articles 125 and 127 nowhere require that judicial misconduct should be immune from public scrutiny. Any words or actions are, of course, subject to the law of defamation, sedition and contempt of court.7. CONTEMPT OF COURT: Article 126 of the Constitution confers on the courts the power to punish for contempt any person who, by word or deed, interferes with the administration of justice or challenges the dignity or independence of the courts.

The law on contempt of court was developed by the common law courts to protect the independence and integrity of the judiciary, to maintain the authority of the courts, to prevent interference with the administration of justice and to secure public confidence in the nations system of dispute-resolution. To this extent the law deserves our vigorous support.

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.

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 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.

8. JUDICIAL IMMUNITY: In the performance of their judicial functions all judges are immune from the law of torts and crime. Just as the public interest in free debate in Parliament justifies the conferment of absolute privilege for words or acts in the course of parliamentary proceedings, so too the public interest in the administration of justice necessitates a similar protection for judicial proceedings. Every judge of the superior and inferior courts is entitled to protection from liability for anything said or done while acting judicially.

Judicial immunity is an aspect of judicial independence. The purpose of this law is to enable judges, counsel and witnesses to speak and act fearlessly in the interest of justice and to condemn inequity in appropriate language without fear of being sued or prosecuted.

Basis of the law:The Federal Constitution is silent on the issue of judicial immunity. There is passing reference to immunities in Article 122AB(1) for Judicial Commissioners but no explicit protection for other judges. However a number of other laws confer absolute privilege on judicial proceedings. Under English common law which is applicable in Malaysia, judges have enjoyed an immunity since the middle of the 19th century. The Defamation Act in section 11(1) confers absolute privilege on reports of judicial proceedings including pleadings, judgments, sentences or findings. This is so if the reports are fair, accurate and contemporaneous and the proceedings were publicly heard before a lawful court. All comments on judicial proceedings are privileged if fair and in good faith. Under section 6(3) of the Government proceedings Act 1956 there is absolute immunity in torts for all acts performed in a judicial capacity.

Extent of immunity: In the performance of his judicial functions a judge is protected from both the civil and criminal process. He cannot be sued in the civil courts for defamation, false imprisonment or negligence or prosecuted in the criminal courts for offences like sedition, breach of the Official Secrets Act or blasphemy. He is protected as long as he acts under the honest belief that his conduct was within his powers even though a mistake of law or fact had led him outside his jurisdiction. In Anderson v Gorrie [1895] 1 QB 668, it was held that superior court judges, but not judges of inferior courts, are absolutely immune from liability however malicious, corrupt or oppressive their words or acts may be. Fortunately this distinction between superior and inferior courts is now part of history. In Sirros v Moore [1975] QB 118, the English Court of Appeal assimilated the position of subordinate courts to the position of superior courts. In that case the Court of Appeal held that every judge, including a lower court judge, was entitled to be protected as long as he acts under the honest belief that his conduct was within his jurisdiction.

In the the public interest, absolute privilege also attaches to words used by parties, lawyers, witnesses and jurors. Members of the jury cannot be punished for their verdict.

Judicial immunity is larger in scope than the protection afforded by Article 63 of the Constitution to parliamentary proceedings. In the course of parliamentary discussions and debates, MPs are exempt from all laws except the law of sedition. But the law of sedition does not apply to judicial proceedings.

In July 2007, the Court of Appeal dismissed the nations first suit against a judge. In a case brought by Indah Desa Saujana Corporation (and others) against Justice James Foong, it was alleged that the judge, by instructing a senior assistant registrar under his charge to accept a bankers cheque from Public Bank while he (the judge) was on vacation in Singapore, amounted to an interference with the process of justice. The applicants had been awarded more than RM14 million in a default judgment against the bank. They demanded that payment should be made to them but the bank contacted the judge who instructed the senior assistant registrar to accept the payment in court. The Court of Appeal held that the act of the judge was in the course of his judicial duties as head of the civil division and was bona fide. Immunity applied.Limits on immunity: Judicial immunities relate to function, not to person. When judges act in their personal capacities, they are answerable to the ordinary law before the ordinary courts.

Members of the judiciary perform not only adjudicatory but also many administrative and legislative functions. The Chief Justice, the President and the Chief Judge, in their capacities as administrative heads of their courts, perform many non-judicial functions. Senior judges sit on Rules Committees to draft procedural rules for the courts. In the performance of such non-judicial functions, there is no immunity from the law of crime and torts.

Though judges are shielded from the law of torts in respect of their words or acts, this is not a licence to be corrupt or oppressive. The Anti-Corruption Act applies to them just as it applies to all public officers. Oppressive or improper conduct may also be a ground for dismissal under Article 125.

The case of Sirros v Moore suggests that immunity is not absolute and malice defeats immunity. But the issue is by no means settled. In the English case of Ferguson v Earl [1842] 9 cl. & F 251, 311 (H.L), it was held that a judge wrongfully declining to hear a case within his jurisdiction may incur civil liability to the person aggrieved. Under the Habeas Corpus Act 1679 of England a judge wrongfully and wilfully refusing to issue the writ is liable to a penalty of 500 pounds recoverable by the detainee!

Members of those tribunals that resemble courts enjoy only a partial immunity. Suits may lie against them for malicious acts and for acts done outside their jurisdiction. In the law of torts, they enjoy only a qualified privilege which is destroyed by proof of malice.

Legal practitioners: In the interest of administration of justice, the immunity of judicial proceedings applies to pleadings, submissions, documents, questions and answers in the court. But Indian courts have held that a counsel must perform his duty with discretion. If he makes irrelevant, wanton, wild, reckless and malicious allegations, the privilege may be withdrawn. Lawyers are also liable to punishment if their conduct is regarded as a contempt of court: AG v Manjeet Singh Dhillon [1991] 1 MLJ 167; AG v Arthur Lee Meng Kuang [1987] 1 MLJ 206.SOME ISSUES AND DILEMMAS

1. JURISDICTIONAL ISSUES BETWEEN CIVIL AND SYARIAH COURTS: The cardinal principle of constitutional supremacy seems to have become subject to at least one exception. On 10 June 1988 the Constitution (Amendment) Act 1988 (Act A704) inserted a new clause (1A) to Article 121 to provide that (the High Courts) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. Article 121(1A) was meant to create a separation between the Syariah and the civil courts; to give independence to the Syariah courts in matters within their jurisdiction; and to forbid the civil courts from engaging in interpretation of those issues of Syariah law that are assigned to state jurisdiction. The judicial practice has evolved differently. In a long line of cases, civil courts have started interpreting their powers narrowly. In case after case the civil courts have declined jurisdiction even though questions of constitutionality were often at stake, even though there were complaints of fundamental rights violations or allegations that the federal-state division of powers was transgressed. In some cases one party was a Muslim, the other a non-Muslim but the civil courts refused jurisdiction and the parties were advised to turn to the Syariah courts, notwithstanding the clear constitutional rule in Schedule 9 List II Paragraph 1 that Syariah courts shall have jurisdiction only over Muslims. The view of some civil courts seems to be that as long as there is any element of Syariah law or jurisprudence involved, the matter must be referred to the religious courts.

In turn, State Assemblies and Syariah courts have begun to view their powers expansively. They have begun to exercise jurisdiction on all matters relating to Islam even if those matters are not, under the Constitution, within their jurisdiction as defined in Schedule 9 List II, Paragraph 1. It is submitted that in the constitutional scheme of things, issues of constitutionality, of jurisdiction, of fundamental rights and of the federal-state division of powers are in the hands of the federal courts. Inspiration for this proposition can be derived from a number of cases: Sukma Darmawan Sasmitaat Madja [1999] 1 CLJ 497, Dato Kadar Shah Tun Sulaiman v Datin Fauziah Haron [2008] 4 CLJ 504, Latifah Mat Zain v Rosmawati bte Sharibun [2007] 5 MLJ 101 and Siti Hasnah Vangarama Binti Abdullah v Tun Dr Mahathir Mohamad (and others) (30 July 2012). In the latter case a seven year old girl, who was born to Hindu parents and given the Hindu name of Banggarma a/p Subramaniam was put through the process of conversion to Islam. Now an adult she argued that she was never a Muslim but had been in an unconstitutional and unlawful manner and without parental consent converted to Islam. The Penang High Court held that the Syariah High Court of Penang had exclusive jurisdiction to adjudicate on the contestations. The Court of Appeal in a courageous and learned judgment penned by JCA Dato Mohd Hishamudin Yunus ruled that it is not the law that a subject-matter automatically ceases to be within the jurisdiction of the civil courts just because it has an Islamic law element in it. Only if the subject-matter is exclusively within the jurisdiction of the Syariah Courts would the subject-matter, by virtue of Article 121(1A), fall outside the jurisdiction of the civil courts. The determination and the enforcement of fundamental rights are matters that are outside the jurisdiction of Syariah Courts. As the case involved provisions of Article 11(1) and Article 12(4) and the Guardianship of Infants Act 1961, the civil courts must accept jurisdiction. 2. AMENDMENT OF ARTICLE 121(1): The issue of the courts inherent power of judicial review has become quite clouded after the amendment to Article 121(1) in 1988. This amendment deleted the words that Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts The re-drafted Article 121(1) states that there shall be two High Courts and they shall have such jurisdiction and powers as may be conferred by or under federal law. Some judges are of the view that this amendment does not destroy the doctrine of separation of powers; it does not emasculate the judiciary; it does not extinguish the courts inherent power to review executive and legislative actions. In support of this view one can point to a large number of cases from the Commonwealth. One can refer to the fact that the 1988 amendment did not delete the head note to Article 121 which still reads Judicial power of the 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 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 tenure.

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; ability to communicate; preparation, attentiveness and control over proceedings; skills as a manager of pending matters; and punctuality. 4. INSULATION FROM POLITICS: Much as judges abhor partisanship, some judicial functions gallop around the outskirts of economic and political ideology. For example, the judicial power in Articles 4(1) and 128(1) to determine the constitutionality of laws and executive actions requires judges to adjudicate on issues on which political passions may run high. In the USA when President Roosevelt's New Deal legislation was struck down by the Supreme Court, the charge was hurled that the Supreme Court was wedded to a laissez faire ideology of a bygone era.

Judicial determination of disputes between the federal government and the states and between one state and another often drags the courts into politically charged issues. Witness for example the decision in Mamat Daud v Government [1988] 1 MLJ 119 that section 298A of the Penal Code was not a law on public order (within the powers of the federal government) but a law on Islam (within the exclusive competence of the states). Disputes between the federation and the states about oil royalty, local government elections, appointment of State Secretary, management of water resources, building of dams and the recently installed electronic monitoring system on the roads invariably raise political temperatures.

Many issues are tinged with partisan politics among them declaration and revocation of emergency and appointment or dismissal of Prime Minister/Chief Minister.5. LAW OF CONTEMPT OF COURT: The need to preserve the dignity and independence of the judiciary needs to be reconciled with the equally important need to enable litigants and lawyers to espouse their causes without undue fear of being punished for their advocacy. Because Malaysia has opted for a written Constitution with a chapter on fundamental rights instead of an unwritten Constitution as in the UK, it makes more sense to follow American and Indian precedents than English practices in this field. The wholesale acceptance of the English law of contempt without due regard to the imperatives of personal liberty and free speech enshrined in the Constitutions Articles 5 and 10 respectively, has not served us well. We need a codified law of contempt of court on the lines of the Bar Councils initiative in 1999.The new law must address a number of critical issues foremost among them are the following:

Are there any circumstances in which a judge can be cited for contempt of court? What if a Chief Justice telephones and pressurizes one of his judges to decide a case in a particular way? What if an Acting Lord President calls up the court registry and orders the officers to close the doors so that no 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 Attorney-General 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 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. 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

For a distinction between appeal and review see M P Jain, supra, pp. 435-439

For a discussion of the engaging issue of exclusionary, ouster and privative clauses see M P Jain, supra, pp. 536-553

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.

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.

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.

Increased to eleven by PU(A)114/82

Increased to 22 by the Constitution of the Court of Appeal Order 2006, PU(A) 385, 4 Oct. 2006.

Increased to 60 by the Constitution of the High Courts (Judges) Order 2006, PU (A) 384, 4 Oct. 2006.

Increased to 13 by the Constitution of the High Courts (Judges) Order 2006, PU (A) 284, 4 Oct. 2006.

Refer to Articles 122(1), 122A(1) and 122AA(1)

The Star, 29 August 2007, N17.

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.

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.

Refer to the Judges Remuneration Act 1971 (Act 45)

However, the rule against double jeopardy under Article 7(2) may apply.

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.

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.

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.

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

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.

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.

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