Lord judicial independence. Judicial independence is understood
LordBrowne-Wilkinson stated that a judge should not be pressured from thegovernment or any party when deciding cases. 1Judicial independence firststarted in England in the Act of Settlement 1701 where judges’ commission arevalid during good behaviour and if they do not behaved, they may be removedonly by both Houses of Parliament to ensure judicial independence for the fearof monarch influencing judges’ decision.
2 England’s concept ofjudicial independence spread internationally as England served as the model forMontesquieu’s ideology of separation of power and the US implemented this modelfor their American judicial independence. Judicial independence is understood thatthe judiciary is to be separated from the executive and legislature. However,UK has no written constitution and the Parliament is supreme that there is nojudicial review of legislative and executive conducts on the ground ofconstitutionality. In Malaysia, under the Reid Commission Report, a judgecannot be removed except by order of the Yang di-Pertuan Agong and by two-thirdmajority votes in both Houses. The Federal Constitution contains provisionsthat secured judicial independence such as Article 121 which secures judicialpower for judges to try offences and disputes, Article 125 provides forsecurity of judges’ tenure, Article 126 provides power for judges to punish forcontempt of court and Article 127 insulates judges from politics. 3Although judicial independenceis vested in the Federal Constitution under Article 121 to Article 131, thereare problems regarding judicial independence which if reforms are taken, willfurther enhance and protect civil liberties.
Thejudiciary is essential to resolve the conflicting demands of power and liberty,freedom and responsibility and the power of the State and rights of thecitizens. One of the problems regarding judicial independence is that judicialpower is no longer vested under judiciary but the Attorney General, anexecutive. Article 145 (3A) of the Federal Constitution provides power to theAttorney General which is a member of the executive to choose the venue ofproceeding. 4Thisshows interference of a member of the executive in the judiciary when judges aresupposed to determine judicial matters and to protect civil liberties. In PublicProsecutor v Lim Shui Wang & Ors, the accused was charged with drugtrafficking and his case was transferred to the Special Sessions Court.
TheCourt held that the Attorney General has the discretion to choose the venue ofproceeding. 5InDatuk Haji Harun v Public Prosecutor, the accused claimed that Section 418A ofthe Criminal Procedure Code is ultra vires as it violated Article 8 of the FederalConstitution which guarantees equality. The Court held that the AttorneyGeneral has the discretion to determine the venue of proceeding and is notsubject to review. 6Itwas also similar in Long bin Samad & Ors v Public Prosecutor where theaccused claimed that he should be charged under Section 376 of the Penal Codeand tried under the Sessions Court. The court held that the Attorney Generalcan choose to charge a person under any law he chooses, to choose a venue ofproceeding and to continue or discontinue any proceeding. 7 With reference to thecases mentioned, citizens are deprived from their civil liberties as they lostan opportunity to appeal for their case.
When an accused is transferred to amore superior court, they lose each chance to appeal for their conviction. Citizensmay also be convicted under any law which the Attorney General chooses. Rightsof a person to personal liberty and equality are deprived when it is subjectedthe Attorney General’s absolute control. The judiciary should be independentand not interfered or influenced by any organs of the government. Theprovisions of the Constitution should be interpreted holistically consideringmoral principles, doctrines, standards and framework to protect civil libertiesand most importantly, to enforce constitutional constraints on the power of theAttorney General. Reformsare necessary to further secure judicial independence and to further enhanceand protect civil liberties.
In the UK, the British Constitutional Reform Act2005 discontinued the Lord Chancellor’s position as the Lord Chancellor causesoverlap of functions between the three organs of government. He is a CabinetMinister in charge of civil law reform, the speaker of the House of Lords andthe highest judge of the land. Montesquieu’s ideology of separation of powerand Article 6 (paragraph 1) of the European Convention of Human Rights whichprovides for right to fair trial was breached.8 A judicial member who isalso a member of the executive or legislative is considered to be easilyinfluenced and will not provide fair trial. Therefore, the office of LordChancellor was modified and the functions of the Lord Chancellor is prescribedin detailed to secure judicial independence. Section 3(5) of the BritishConstitutional Reform Act 2005 states that the Lord Chancellor and Ministers ofthe Crown must not influence judicial decisions by any special access to thejudiciary.9 This ensures that judicialdecisions are not made under the influence from any organs of the government.
Controversy regarding judicial decisions would not be raised as the judges areinterpreting the law freely without pressure before deciding a case. The LordChancellor will not be a member of the House of Lords (legislative) as he willbe as he will remain as a member of the executive.10 As such, Lord Falconer isnot a judge unlike previous Lord Chancellor.
11 InAfghanistan, the Attorney General advices the government on legal matters andregulates the implementation of law by the rule of law. However, he does notprosecute persons without thorough investigation or under any law which hechooses to in order to ensure fairness and justice is preserved. When citizens seek for his help, he listensand acts on behalf of the government to bring justice to the people. 12Their Attorney General,who is also a former human rights activist, made a reform of the country’sjustice system by instituting a new anti-corruption justice centre whichinvestigators and prosecutors to monitor fraud and bribery as there were claimsthat the judiciary system is heavily-politicised and civil liberties were notprotected. The purpose of this reform is to bring peace, stability, andsecurity to the rule of law.
Under the Attorney General’s authority, civilliberties are protected as no person in the country is above the law. Pragmaticreforms are necessary for a total independent judiciary in Malaysia to furtherenhance and protect civil liberties. Reforms made in the UK and Afghanistanshould be taken into account to resolve the judicial problem where judicialpower is no longer vested under judiciary but the Attorney General, anexecutive. However, reforms made in the UK is more suitable to be adapted inMalaysia as Malaysia’s judicial system was modelled based by the UK’s. Section5 and 6 of the Civil Law Act 1956 provides that judges has the discretion toimport English law, statutes and equity into the judiciary subjected to localcircumstances render necessary to fill in lacunae.
13 A totally independentjudiciary which restricts the interference of a member of the executive isnecessary to give right to fair trial and to further enhance and protect civilliberties. 1Browne- Wilkinson, Sir Nicholas, ” The Independence of the Judiciary in the1980s”1988 Public Law 44-572Act of Settlement 1701 is an act passed by the Parliament to settle thesuccessors to the English and Irish crowns on Protestants only.3Federal Constitution, Article 121,125,126,1274Ibid, Article 145 (3A)51979 1 MLJ 656 19772 MLJ 1557 19742 MLJ 1528 EuropeanConvention of Human Rights, Article 6 (paragraph 1)9 BritishConstitutional Reform Act 2005, Section 3(5) 10Ibid, Part 211 Constitutional-Reform-Act-2005.LawTeacher. Retrieved 21 January 2018, fromhttps://www.lawteacher.net/free-law-essays/human-rights/constitutional-reform-act-2005.
php12 Arural district official with a pile of documents, seek justice from theattorney general as his brother had been killed long ago and the murderer was releasedfrom prison due to political pressure when the criminal should not be free. TheAttorney General agreed to look into it.13 CivilLaw Act 1956, Section 5 and 6