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Judiciary, justice and the constitution

One of the most sacred Institutions of a democracy remains the judiciary. A nation where the law is well-developed and the judiciary held in high esteem is one that earns respect. Malaysia’s fine record under the leadership of the late Suffian Hashim and other earlier legal luminaries was sadly demolished following the judicial crisis in 1988.

This involved a series of events that began with the Umno party elections in 1987 and ended with the removal of the then Lord President of the Supreme Court Salleh Abbas. With the Malaysian courts showing independence and with a prime minister who felt that the executive and the legislature were supreme, conflict became the order of the day.

The sacking of Salleh Abbas and two other Supreme Court judges put an end to the flame of judicial independence in the nation. The executive was singularly responsible for this scar on the nation’s judiciary. Following regular urgings for a review, then-de facto law minister Zaid Ibrahim in 2008 made an open apology to the sacked judges, calling the government’s action during the crisis as “inappropriate”.

Prime minister Abdullah Ahmad Badawi called the crisis one which the nation has never recovered from and announced ex-gratia payments to the sacked and suspended judges. In many ways there are many more lessons from this episode that must be learnt. As citizens we must remain vigilant to the cause of judicial independence in the nation. Judicial appointments remain a cornerstone to an independent judiciary.

Executive interference continues in the appointment and promotion of judges. This is causing concern regarding the credibility of the judiciary. Party affiliation seems to be an advantage and those showing an independent streak are not promoted as claimed by those by passed. The executive wants unfettered control in the exercise of its power. It looks as though we have not learnt any lessons!

There may be a lack of perfection but it is always good to consider and relate to how democracy is practised in different countries more so when we consider a nation that has forty times the population of Malaysia. How is the expression for the cause of judicial independence proceeding?

In his recent article where he thanks the Supreme Court of India for saving them from disaster, Dorab R Sopariwala highlights how India’s Supreme Court of has both boldly and decisively declared the 99th constitutional amendment regarding the National Judicial Appointments Commission (NJAC) as both unconstitutional and void as this violates the basic structure of the Indian constitution.

As Justice Kehar the presiding judge wrote, “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance.”

Equally valid for Malaysia

This is equally valid for Malaysia. When will our judges and politicians have the courage, confidence and integrity to stand up for our judiciary and remove all executive interference? Check and balances are critical for the development of institutions within a vibrant democracy. Alternatively we will continue to destroy critical institutions as we are witnessing presently.

With prosecution solely under the attorney-general (AG), the executive wields immense power to shield itself. The recent National Security Council Bill 2015 is an example of unfettered power in the hands of the executive.

Membership of the NJAC was to comprise: the Chief Justice of India (CJI), two senior-most learned judges of the Supreme Court, the law minister and two ‘eminent persons’ selected by a panel comprising the CJI, the prime minister and the leader of the largest opposition party (LOP). The crunch point was that any two of these six could veto an appointment.

The judgment was clear in that the judiciary was opposed to the law minister being a member of the panel as his very presence would impinge on the principle of the independence of the judiciary and contrary to the notion of ‘separation of powers’. In addition the presence of the PM and the LOP was also viewed negatively.

The government in India being regarded as one of the largest litigants, it was felt that it would be absurd for them to have a hand in selection and later assessment of judges.

The Indian attorney-general who suggested having possibly two eminent persons in the committee saw his ideas heavily contested. How could someone with no knowledge of the law and no ability to assess judicial issues be able to select a Supreme Court Judge who is going to safeguard the constitution and ensure that the rights of the people are not trespassed? A very valid query that was raised and an important point made.

Their Lordships did not mince their words saying that it would be ‘disastrous’ to include lay persons without expertise on the selection panel and proceeded to junk the constitutional amendment. Meanwhile there have been others both from the political class and some legal heavyweights who have taken issue with this decision.

This has brought to the fore issues which have clarified the status of legal appointments in keeping with the Indian constitution. With regards judicial appointments in Malaysia this decision of the Indian Supreme Court offers a lot for us to reflect upon. Would our judges emulate such clarity and independence in their thinking? Do they have the spine and conviction to stand up for their calling?

Ravi Shanker Prasad, India’s Telecommunications Minister and a senior Advocate of the Supreme Court, in an article to the Indian Express states, “While holding very dearly to the principle of parliamentary sovereignty this is a setback...” Questions have been raised about parliamentary sovereignty said Minister Prasad.

While this notion of Parliamentary Sovereignty has had a setback in Britain where they do not have a written constitution British laws can today be set aside by the Supreme Court of the UK, the European Court of Justice or by the European Court of Human Rights. Others have queried as to where is it written that Parliament is Sovereign? It is not as though some politicians, however learned, could just decide that Parliament is sovereign?

Under the written Indian Constitution the Executive is subordinate to the legislature and the judiciary is independent. If there remains any group that is sovereign then this resides with “we the people”. India also has seen moments when the judiciary was trampled upon by the executive during the dark days of their Emergency.

In the infamous habeas corpus case the Supreme Court went against the decision of nine High Court judges and upheld then-prime minister Indira Gandhi’s right to suspend all fundamental rights during Emergency.

Sounding familiar?

Four judges ruled for the government; HR Khanna the fifth judge dissented. He was superseded and later resigned like three other judges who were also later superseded and they likewise resigned. Similar to the judicial crisis in Malaysia this was the lowest point for the Indian judiciary. Indira Gandhi, then-prime minister, and HR Gokhale, her law minister, wanted to pack the court with “forward looking” judges. Does this not sound familiar?

Justice Hidayatullah, a former Chief Justice of India, then remarked that this was an attempt not at creating forward looking judges but judges “looking forward” to the office of the Chief Justice. The executive was thus playing politics and they were also very blameworthy in this matter.

We have had glaring cases in Malaysia where the executive has interfered and perceived to have interfered in the affairs of the judiciary. The notion of the ‘hidden hand’ is often used to explain judicial decisions. When will our judges have the spine, the integrity and the conviction to stand up for their cause and to ensure that they have a special duty and responsibility to the citizens of the nation? What would they bequeath for the future generations?

Otherwise we would likewise end up with numerous ‘looking forward’ judges who will continually dance to the tune of the executive in the hope of promotions, patronage, titles and other benefits. The Malaysian judiciary must remain totally independent and both judges and lawyers must ensure that this cause is not compromised in the interest of the people and our democracy. This should be the most significant lesson we can learn from the last judicial crisis.

With our constitution framed in the light of the Indian constitution, there are many similarities that could help us as we look ahead to becoming a developed nation with a first-rate Parliament, judiciary and an executive that is both accountable and responsible. The unbridled power that is today exercised by the executive is doing harm both to the spirit of democracy and democratic institutions in the nation.

I do not think that we in Malaysia also subscribe to the notion of Parliamentary Sovereignty. Hence in ensuring that we have an Independent Judicial Appointments Committee we are strengthening the democratic spirit of the nation. Justice is a key notion within Islam and is it too much to ensure that the same is freely upheld within the framework of our constitution.

We must ensure that justice is not only seen to be done but is equally dispensed to all citizens high or low.

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