The independence of the judiciary as a fundamental
feature in our democracy should never be taken for granted. Instead, judicial
independence should not only be safeguarded but further enhanced.
Judicial independence is critical not only as a
source of pride in our constitutional system but to ensure its integrity and
sustainability. Our constitutional system provides for an independent judiciary
under the concept of separation of powers.
And in turn, an independent judiciary
guarantees that the spirit and letter of our Constitution is upheld in its
fullest sense and as an integral whole.
Underwriting separation of powers which entails
an independent judiciary is “common law”.
Common law is part of the British colonial
legacy we had inherited and that has informed and shaped the thinking of our
judges. A common law system is where past judicial decisions or judgments
constitute a legally decisive and binding influence.
That is to say, judgments are made based on the
peculiar jurisprudence of judges without outside influence, whether executive
Other sources of law include statute law
(legislation), local customary laws, Islamic or Syariah law, and not least our
Federal Constitution as the supreme law of the land, as per Article 4.
Over the years, we have ingeniously developed
our own brand of common law in distinction from the original English version.
Localised common law embodies a dynamic mix and
interplay of local customary laws, Islamic or Syariah law and contextualisation
which is adapting the basic principles of English common law into the local
situation or environment.
In other words, English common law has become
and been subjected to the process of Malaysianisation. So much so that English
common law has become limited in its usage and applicability.
In light of this, some judicial figures have taken
the bold step in calling for the outright abolition of English common law.
While other have suggested that English common
law should take a back seat so that our own unique blend of Malaysian-style
common law can further increase in precedent, emphasis and importance.
For our judiciary to maintain its assertiveness
and boldness, preservation and continuation of the common law tradition of
formulating judgments based on a purely judicial basis is indispensable.
Common law – whether English or Malaysian –
remains a bulwark against executive aggression and interference and
transgression of separation of powers.
Never again should the shameful episode of the
infamous sacking of Tun Salleh Abbas as the Lord President and the other judges
of the then Supreme (and now Federal) Court that precipitated the 1988
constitutional crisis be allowed to repeat itself.
Tun Salleh Abbas was a pawn in the political
power struggle between the executive and the monarchy. His sacking was a red
herring and not only distracted from the actual issue but at that time severely
undermined the independence of the judiciary for many years to come.
Indeed, it was rightly said that the notorious
event reflected outright executive interference and marked the decline in
judicial independence. But thankfully, our judiciary has since the past two
decades step-by-step regained its independence and assertiveness.
A shining example could be seen in the judgment
of the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat
In the case, it was ruled that the 1988
amendment to the Federal Constitution to check the powers of the judiciary is
contrary to the basic structure of the supreme law of the land because it
undermined the principle of separation of powers and constitutional supremacy.
And as recently as late last year, then newly
appointed Chief Justice, Tengku Maimun Tuan Mat averred that the Federal
Court’s landmark decision in the unilateral conversion case of M Indira Gandhi
She said no legal restrictions whatsoever could
be imposed so as to curtail the inherent power of the courts to conduct
“Rather, such powers serve to uphold constitutional
supremacy. The notion expressed in Indira Gandhi’s case that the entrenchment
of the principle of separation of powers within the basic structure gives true
meaning to the core preserve of constitutionalism.”
Besides conserving common law as lying at the
core of our legal system, how could the independence of our judiciary be
further stretched? Perhaps the following five policy recommendations could
To further clarify separation of powers in our Constitution by inserting the relevant provisions such that the interpretation of the basic law or structure in the Constitution can only be conducted by the judiciary alone by strengthening the provisions of Article 4.
Towards this end, a Royal Commission should be set up to ensure that the interpretation of the basic law or structure is not politicised. This Commission – under the auspices and operating under the decree of the Yang di-Pertuan Agong – would be responsible for initiating the process whereby matters deemed to be constitutional importance are referred to the Federal Court for interpretation as per Article 130;
To also insert into our Constitution the inherent right of the superior courts (High Court, Appeal Court and Federal Court) to strike down an incompatible Act of Parliament by strengthening the provisions of Article 121;
Increasing and expanding on the role and function of judges by empowering them to be fact-finders in committees of inquiry (COI) and royal commissions;
Promoting the recruitment and appointment of judges from outside the Judicial and Legal Services; and
Enhance the provisions of Article 127 on the restriction on parliamentary discussion of conduct of judges by ensuring the conditional approval of the Council of Rulers as well as of the other House is first secured in addition to pre-existing requirements. Currently, only a substantive motion by at least a quarter of membership of the relevant House is required.
These five policy recommendations could well be
analogous to the spokes of a wheel. Underpinning and constituting the nub by
which the spokes of the wheel turns is none other than common law, no less.
Our judiciary continues to draw its strength
and resilience from the great reservoir of the common law tradition and rightly
For common law – as the very epitome and
paragon of judicial independence at its finest – remains relevant to give
concrete expression to the democratic values of our Constitution and political
May our judges stay true to their calling in
steadfast defence of common law principles and upholding justice without fear
Jason Loh Seong Wei is Head of Social, Law and Human Rights at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.