This is a follow-up article from my previous one titled ‘A Blind Spot of the Legal System’. This article is inspired by a question asked by a fellow reader, ‘The Analyser’, on how the legal system and the judiciary could be depoliticised, yet remain answerable to the people. The issues are complex, in this article I will only discuss how it could be depoliticised, and leave the ‘answerable’ question to my next one.

Most people who have basic knowledge about political system are familiar with the idea of Separation of Powers. In essence, it means the institution of government is divided into three powers, namely the legislative who makes law; the executive who enforces it; and the judiciary who interprets it. These three branches are supposed to maintain the integrity of each other through checks and balances.

Theoretically, the separation of powers is brilliant to avoid corruption by any one power. However, there is a significant defect in this theory - who is supposed to appoint people into the highest role of each power? You could say that the Yang di-Pertuan Agong should do so, but wouldn’t that give His Majesty the absolute power above all?

In Malaysia, our federal constitution gives the prime minister the power to ‘advise’ His Majesty to appoint his candidate for the role of Chief Justice (Art 122B(1)). Further, after consulting the Chief Justice, the Prime Minister can also ‘advise’ His Majesty to pick his candidates for all the judges sitting in the Federal Court.

Through similar mechanism, the prime minister can technically pick his candidates for all the judges sitting in the Court of Appeal and the High Courts, too. Although I doubt he is interested in all of them apart from a few key roles.

The other common law countries give similar power to the head of government, too, but they have further safeguards. For example, in the United States, the president’s nomination requires the consent of the Senate. In the United Kingdom, the prime minister must nominate the person recommended by a special selection commission. It is only in Australia where the prime minister has arbitrary powers similar to Malaysia, but there has not been questionable practice in Australia.

In a mature democracy, there is not much detrimental effects in choosing judges this way. This is because there are many viable political parties who may form government and the prime minister changes every few years, rendering it impossible to hijack the judiciary.

But the situation is fundamentally different in Malaysia, when the governing party outlive the tenure of most judges, the prime minister can fill up enough seats to affect the Federal Court judgments. They need not be of certain political belief, it will suffice if, for example, the judges chosen are judges who exercise strong self-restraint not to meddle (or check) in executive power.

A further twist - constitution amended

Thanks to Dr Mahathir Mohamad, whose regime in 1988 amended the constitution in a way that the jurisdiction and powers of the court can only be conferred by the federal law (Art 121(1)). If this sounds too abstract to you, it basically means what the court can or cannot do is up to the Parliament, which is still under Umno-BN until now.

With this final interruption in the judiciary, Dr Mahathir has successfully merged all three branches of government under his power. And what’s worse? What he had done is NOT technically illegal.

The fundamental problem is that our constitution is not entrenched (or protected) enough. Any party with a two-third majority can meddle with the basic structure of the institution of government.

It is not the fault of the drafters of our constitution. Two-third majority is almost an impossible figure in any other mature democracy. The English drafters (Reid Commission) for the Merdeka Constitution probably never thought that BN will be able to hold onto its two-third majority for almost 50 years, until 2008. They had also probably thought that, just like them, most of our Members of Parliament will be rational lawyers who will protect the rule of law.

Who would have thought a doctor eventually dictated our nation for twenty-two years and meddle with the constitution like he is operating a surgery?

Solution

There is no quick solution to our current woe. The only technical way to solve it is for 66 percent of our MPs to amend the constitution again to reinstate the separation of power and further safeguards to the judiciary. This is almost impossible with the current Umno-BN regime in power.

Even if Pakatan Harapan is able to form government (with simple majority, 50 percent) in the future, two-third majority is probably a bar too high. The only practical way is to make a deal with the BN MPs, but that deal could be very politically costly to them.

CHIANG CHOON YIT is a law student at the Australian National University.