APRIL 23 — The Honourable Chief Justice of Malaysia Tun Tengku Maimun binti Tuan Mat delivered a speech entitled “Judicial Independence and Parliamentary Sovereignty – a Colossi of Roads?” which elicited both support and criticism.
A plain and objective reading of her Ladyship’s presentation will disabuse any notion that the Chief Justice is advocating a form of juristocracy, i.e. the judiciary being an unelected body embarking on a road to establishing judicial supremacy over elected officers that represents the sovereign will of the people.
The Chief Justice neither makes such an assertion nor was there discernible any desire to promote her own virtues or character.
The arguments made in the paper highlights Constitutional supremacy as provided for under Article 4(1) of the Federal Constitution as was pointed out cogently by Tun Tengku Maimun, “the Federal Constitution of Malaysia did not emerge from the aftermath of a bloody revolution or upheaval against colonial rule. Rather, it was the product of careful negotiation and consensus among key stakeholders, including the Malay rulers, political leaders and representatives of the nation ‘multiracial communities. “
Students of the British Constitution which a generation fresh after our independence was weaned on the writings of A.V. Dicey, the Victorian jurist who in engaging on the unwritten Constitution of the UK espoused either implicitly or explicitly the doctrine of parliamentary sovereignty.
Citing a respected ruling of then Lord President Mohamed Suffian Mohamed Hashim, the distinction between the UK where supremacy of Parliament is applicable, the learned jurist observed, “the power of parliament and of State Legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”
The evolution of judicial review of both legislative enactments and executive actions which contravene the principle of Constitutional supremacy was sketched by the Chief Justice.
In 1988, the then Prime Minister Dr Mahathir Mohamad removed reference to the vesting of judicial power on the superior courts and renamed the Supreme Court to the Federal Court.
This was prompted by the judicial review of certain ministerial discretion which irked the Executive. The tribunalisation and subsequent removal of the then Chief Justice Tun Salleh Abbas and five Supreme Court justices were indeed signature events that seriously impaired and damaged the integrity and independence of the judiciary.
The efforts in the last two decades to re-establish the broken foundations of Constitutional governance by key incremental judicial decisions led by clear sighted fidelity to canons of Constitutional interpretation cannot be cynically dismissed as a desire to seek personal validation.
Decisions and precedents were already established to re-contextualise the boundaries of earlier judicial reticence in delineating both legislative and executive acts before the Bar of Constitutional supremacy as unequivocally provided by Article 4(1) of the Federal Constitution.
The outcry over the Chief Justice’s dispassionate account clearly recognises that judicial ruling on legislative and executive actions are not to be construed as a threat or assertion of unelected power against political actions but a Constitutional organ discharging their oath of office in upholding the rule of law and the Constitution.
Any exercise of judicial powers is not meant as an end in itself but to be,“a fortress against tyranny, oppression and absolute power, which most certainly corrupts absolutely.”
Democratic governance includes the vitality of the interpretive function of a judiciary working alongside the Executive and Legislature. — Pexels pic
The focus of criticism against the Chief Justice’s speech was on her remarks that the Judicial Appointment Commission (JAC) which was established under the JAC Act 2009 provided an additional safeguard for judicial independence as part of the evolving institutional development towards good Constitutional governance.
In the past, judicial appointments appear to be vested on the discretion of the prime minister, albeit upon consulting the Chief Justice but with the establishment of the JAC there is an additional “institutional safeguard to enhance the transparency, integrity and merit-based selection of candidates for judicial office.”
In paragraph 37 of her speech, the Chief Justice noted, “Of late there have been proposals to amend the Judicial Appointments Commission Act 2009 and the Federal Constitution to remove the role of the prime minister in the appointment of judges.
“Such changes in my view would reinforce the impartiality of the decision process, ensuring that judicial appointments remain firmly grounded on merits and free from any perception of political influence.”
This extra -judicial comment surely merits a deliberative debate and not arrogant, dismissive or even derisory remarks, some suggestive of the lamentable events surrounding Tun Salleh Abbas.
As the Chief Justice noted in her conclusion, the relationship between branches of government is not a contest as to who is supreme but a “partnership in governance – one founded not just on mutual respect but on a clear understanding of each branch’s Constitutional roles.”
Undoubtedly there are positive judicial actions and negative ones. The moral and legal legitimacy of judicial decisions lies open to judgement of the public and critical reason.
Democratic governance includes the vitality of interpretive function of a judiciary working alongside the Executive and Legislature.
The fear of unelected elites exercising unwarranted power is baseless so long as judicial decision making remains transparent and accepted as being fair, just and equitable in relationship to the text and context of the issues that are being adjudicated.
* Philip TN Koh is an Advocate & Solicitor, High Court of Malaya; Adjunct Professor, Universiti Malaya; School of Business & Taxation, Monash Malaysia University and member of Board of Trustees Yayasan Tun Suffian.
