Most from and independent of the government, in order

Most constitutional theories require that the judiciary is separate from and independent of the government, in order to ensure the rule of law is enforced impartially and consistently no matter who is in power, and without undue influence from any other source. The concept of Judicial Independence determine the constitutionality of statutes and administrative actions, therefore, the court must be independent from the other two branches of government namely executive and legislative. Articles 121 to 131A of Malaysia Federal Constitution provide provision for our judiciary.

The phrase “there shall be in clause (1) of Art. 121 replaced the phrase “subject to Clause (2) the judicial power of the Federation shall be vested in” by the Constitution (Amendment) Act 1988.  The sacking of Lord President Tun Salleh Abas during the 1988 judicial crisis was a national tragedy that continues to haunt the judiciary till this day. Many quarters have blamed Tun Dr Mahathir Mohamad for removing the separation of powers between the executive, legislature and judiciary when he was prime minister from 1981 to 2003. This is believed to have started with the 1988 judicial crisis, when Salleh Abas was removed from office and five other Supreme Court judges were suspended. His removal is widely viewed as the point at which Malaysia’s judiciary began to lose its independence. In the case of PP v Dato Yap Peng, even though the case had involved both legislative and executive power, the court still upheld the supreme Constitution.

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The accused was charged with criminal breach of trust. The deputy public prosecutor tendered a certificate issued by the public prosecutor to transfer the case to the High Court under Section 418A of the Criminal Procedure Code. Before the High Court, accused argued that Section 418A of the CPC violates Article 121(1) (before 1988) and thus unconstitutional.

The majority of held that, the Section 418A of CPC contravene the Article 121(1) of the Federal Constitution as the power to transfer cases is falls under the jurisdiction of judicial power. The Section 418A of CPC had obviously giving power to a non-judicial authority, where in this case it was given to the deputy public prosecutor and by that it had violates Article 121(1) of the Federal Constitution.  Article 4 of the Federal Constitution, it states that the constitution is the supreme law in the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall be void, to the extent of its inconsistency. Thus, in Malaysia, we are upholding Constitutional Supremacy as we have a written constitution i.e. Federal Constitution, and it is easier to compare with the United States of America constitution that is similar in nature with Malaysia constitution unlike United Kingdom, which only has Acts of Parliament. It makes sense that there must be a neutral or impartial umpire to ensure the supremacy of the Constitution.

The judiciary was envisaged by the framers of the Constitution to perform that role. It exercises the potent power of judicial review: it can declare invalid legislation enacted by the Federal Parliament or the legislature of a State on the ground that the Federal Parliament or State legislature lacks power to make such laws. Because the Constitution embodies fundamental liberties, the protection of such liberties, subject to express constitutional caveats, is entrusted to the judiciary.

As our written constitution is insufficient in upholding rights and liberties of a person, the judiciary shall plays it role to be an essential guardian of human and protect other individual rights. Therefore, the Court has the duty to stand between citizen and State, where a citizen aggrieved with any decision of the State should be able to turn to an independent judiciary for justice. Besides, the Malaysian judiciary oblige to act as the sentinel of the Constitution, that is, to protect, preserve and defend the Constitution from legislative or other attack. The court could not run from the duty to interpret the Constitution where this explains the rationale statement of Chief Justice Charles Hughes of the United States Supreme Court, “We are under a constitution, but the Constitution is what the judges say it is.”.  In the year 1970’s, the recognition and protection of human rights by our Courts became worst as more than 20 reported cases had been reported mostly by Federal Court, where every action by the executive, purportedly acting under power conferred by acts of Parliament, was approved and endorsed by the Judiciary. Subsequently by 1980, these reported decisions rendered illusory the fundamental liberties conferred by Part P of the Federal Constitution. In Loh Wai Kong v Government of Malaysia, Federal Court had rejected a citizen’s right to an international passport, notwithstanding his freedoms of liberty and movement.

In this case, Suffian LP declared: “a citizen has no fundamental right to leave the country and travel abroad and he does not have a right, not even a qualified right, to a passport”.   The chairman of Malaysian Human Rights Commission (Suhakam), Razali Ismail critically gave his comment that the rules of law needs an independent judiciary to provide proper checks and balances on the effectiveness of government in protecting human rights and fundamental freedoms.. An adequate strategies and measures is vital as to maintain the independence and impartiality of the judiciary and to ensure the moral integrity and accountability of the members of the judiciary. Razali recalled that prior to 1988, the Malaysian judiciary was considered as one of the most independent internationally.

He said the judiciary went through a turbulent time during the crisis which resulted in the sacking of the then Lord President of the Supreme Court, and five other judges met the same fate.  In 2009, the judiciary had been progressive in some of its judgments in the case of Lee Kwan Who v Public Prosecutor where the Federal Court held that human rights must be viewed “prismatically”. Razali in his opinion said that there are other rights that may be derived from it such as the right to life under Article 5 of the Federal Constitution, which encompasses the right to live with dignity.

Judge Gopal Sri Ram, who wrote the celebrated judgment, had said the bench should not view provisions in the Constitution at face value but also look into the implied principles. As conclusion, independence judiciary is the most essential characteristics of a free society in order to form a democratic government under law and the protection of human rights. To carry out its role as a constitutional bulwark effectively, the judiciary must be able to sustain public confidence in its impartiality. As Lord Taylor of Gosforth said: “Public confidence in the fairness of the justice system depends crucially on the judges being believed to be impartial, free from bias and from extraneous influence”. The constitution must be stable and enduring constitutional principles, respected by the legislative and executive branches of government, and protected by an independent judiciary and independent legal profession.